As filed with the Securities and Exchange Commission on June 9, 2011
Registration Statement No. 333-170141
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 4 to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NCL
CORPORATION LTD.
(Exact name of registrant as specified in its charter)
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Bermuda
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4400
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20-0470163
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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7665 Corporate Center Drive
Miami, Florida 33126
(305) 436-4000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Daniel S. Farkas
Senior Vice President and General Counsel
NCL Corporation Ltd.
7665 Corporate Center Drive
Miami, Florida 33126
Telephone: (305) 436-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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William B. Kuesel, Esq.
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Telephone: (212) 326-2000
Fascimile: (212) 326-2061
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Jonathan A. Schaffzin
Luis R. Penalver
Cahill Gordon & Reindel
LLP
80 Pine Street
New York, New York 10005
Telephone: (212) 701-3000
Fascimile: (212) 269-5420
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Approximate
date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the
securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box:
¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer (Do not check if a smaller reporting company)
x
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Smaller reporting company
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The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 4 (this “Amendment No. 4”) to NCL Corporation Ltd.’s Registration Statement on Form S-1
(Registration No. 333-170141) (the “Registration Statement”) is being filed solely to include Exhibits 10.6, 10.7, 10.17, 10.18, 10.25, 10.26, 10.27, 10.32, 10.41, 10.42, 10.52, 10.57, 10.58, 10.60 and 10.61 and for the purpose of
updating the exhibit index attached to the Registration Statement and referenced in Part II, Item 16(a) of the Registration Statement. This Amendment No. 4 does not modify any provision of the prospectus that forms a part of the Registration
Statement. Accordingly, the prospectus has been omitted and this Amendment No. 4 consists of only the registration statement cover page, this explanatory note and Part II of the Registration Statement.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 13.
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Expenses of Issuance and Distribution
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The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the issuance and distribution of the securities being registered.
All amounts are estimates, except the SEC registration fee.
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SEC registration fee
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$
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29,025
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NASDAQ listing fee
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$
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225,000
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Transfer agent and registrar fees and expenses
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*
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Printing and engraving fees and expenses
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*
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Legal and accounting fees and expenses
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*
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Financial Industry Regulatory Authority, Inc. filing fee
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$
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75,000
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Miscellaneous expenses
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*
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Total
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*
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*
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To be completed by amendment.
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Item 14.
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Indemnification of directors and officers
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The Companies Act 1981 of Bermuda requires every officer, including directors, of a company in exercising powers and discharging duties, to act honestly in good faith with a view to the best interests of
the company, and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Companies Act provides that a Bermuda company may indemnify its directors in respect of any loss arising or
liability attaching to them as a result of any negligence, default, breach of duty or breach of trust of which they may be guilty. However, the Companies Act further provides that any provision, whether in the bye-laws of a company or in any
contract between the company and any officer or any person employed by the company as auditor, exempting such officer or person from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him, in
respect of any fraud or dishonesty of which he may be guilty in relation to the company shall be void.
We have adopted
provisions in our bye-laws that, subject to certain exemptions and conditions, require us to indemnify to the full extent permitted by the Companies Act in the event each person who is involved in legal proceedings by reason of the fact that person
is or was a Director, Officer or Resident Representative of the Company, or is or was serving at the request of the Company as a Director, Officer, Resident Representative, employee or agent of another company or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan against all expense, liability and loss (including attorneys’ fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties
arising under the Employee Retirement Income Security Act of 1974) incurred and suffered by the person in connection therewith. We are also required under our bye-laws to advance to such persons expenses incurred in defending a proceeding to which
indemnification might apply, provided if the Companies Act requires, the recipient provides an undertaking agreeing to repay all such advanced amounts if it is ultimately determined that he is not entitled to be indemnified. In addition, the
bye-laws specifically provide that the indemnification rights granted thereunder are non-exclusive.
In addition, we intend to
enter into separate contractual indemnification arrangements with our directors. These arrangements provide for indemnification and the advancement of expenses to these directors in circumstance and subject to limitations substantially similar to
those described above. Section 98A of the Companies Act and our bye-laws permit us to purchase and maintain insurance for the benefit of any officer or director in respect of any loss or liability attaching to him in respect of any negligence,
default, breach of duty or breach of trust, whether or not we may otherwise indemnify such officer or director.
II-1
The underwriting agreement filed as an exhibit to this Registration Statement contains
provisions regarding the indemnification of the Company’s directors and officers against certain liabilities under the Securities Act of 1933, as amended, and regarding contribution with respect to payments that the underwriters, dealers or
agents or their controlling persons may be required to make in respect of those liabilities.
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Item 15.
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Recent sales of unregistered securities
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In the past three years, we have not sold securities without registration under the Securities Act, except as described below.
On January 7, 2008, NCL Corporation Ltd. issued 10,000,000 ordinary shares, par value $.0012 per share, to the Apollo Funds for an investment of $1.0 billion. The issuance of these securities was
effected without registration under the Securities Act in reliance on the exemption from registration provided under Section 4(2) promulgated thereunder.
On April 7, 2009, NCL Corporation Ltd. issued 1,000,000 ordinary shares, par value $.0012 per share, to our then existing shareholders pro-rata in accordance with their then existing percentages of
ownership for an aggregate investment of $100.0 million. The issuance of these securities was effected without registration under the Securities Act in reliance on the exemption from registration provided under Section 4(2) promulgated
thereunder.
In connection with the consummation of this offering, we will be reorganized by creating a new holding company
structure (the “Corporate Reorganization”). The Issuer will become our new parent company, and NCL Corporation Ltd. will become its wholly owned direct subsidiary. As part of the Corporate Reorganization, (i) NCL Corporation
Ltd.’s outstanding ordinary shares will be exchanged for ordinary shares of the Issuer and (ii) we will issue an economically equivalent number of our ordinary shares of the Issuer, at an exchange formula based on the initial public
offering price in this offering, in exchange for NCL Corporation Ltd.’s outstanding profits interests granted under the Profits Sharing Agreement, including the Ordinary Profits Units described under the heading in “Compensation Discussion
& Analysis” in the prospectus included in the Registration Statement. The issuance of these securities will be effected without registration under the Securities Act in reliance on the exemption from registration provided under Section 4(2)
promulgated thereunder.
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Item 16.
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Exhibits and financial statement schedules
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(b)
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Financial statement schedules are not submitted because they are not applicable or because the required information is included in the consolidated financial statements
or the notes thereto.
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The
undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery
to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
II-2
registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that:
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(i)
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for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared
effective; and
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(ii)
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for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Miami, Florida, on June 9, 2011.
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NCL CORPORATION LTD.
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By:
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*
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Name:
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Kevin M. Sheehan
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Title:
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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Kevin M. Sheehan
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President and Chief Executive Officer
(Principal Executive Officer)
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June 9, 2011
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Wendy A. Beck
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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June 9, 2011
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Tan Sri Lim Kok Thay
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Director, Chairman of the Board
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June 9, 2011
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David Chua Ming Huat
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Director
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June 9, 2011
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Marc J. Rowan
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Director
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June 9, 2011
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Steve Martinez
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Director
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June 9, 2011
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Adam M. Aron
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Director
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June 9, 2011
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Walter L. Revell
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Director, Chairman of the Audit Committee
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June 9, 2011
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Karl Peterson
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Director
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June 9, 2011
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*By:
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/
S
/ D
ANIEL
S.
F
ARKAS
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Daniel S. Farkas
Attorney-in-Fact
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S-1
EXHIBIT INDEX
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Exhibit
Number
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Description of Exhibit
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1.1*
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Underwriting Agreement
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3.1*
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Form of Memorandum of Association of NCL Corporation Ltd.
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3.2*
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Form of Amended and Restated Bye-Laws of NCL Corporation Ltd.
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4.1**
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Indenture, dated November 12, 2009, by and among NCL Corporation Ltd. as Issuer and Norwegian Dawn Limited, Norwegian Sun Limited, Norwegian Spirit, Ltd. and Norwegian Star Limited
as subsidiary guarantors and U.S. Bank National Association as Indenture Trustee with respect to $450.0 million 11.75% Senior Notes due 2016 (incorporated by reference to Exhibit 2.5 to our annual report on Form 20-F filed on February 24, 2010
(File No. 333-128780))
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4.2**
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Registration Rights Agreement, dated November 12, 2009, by and among NCL Corporation Ltd. and Norwegian Star Limited, Norwegian Spirit, Ltd., Norwegian Sun Limited and Norwegian
Dawn Limited, as guarantors and Deutsche Bank Securities, Inc., Barclays Capital, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities Inc. with respect to $450.0 million 11.75% Senior Notes due 2016 (incorporated by reference to Exhibit 2.6
to our annual report on Form 20-F filed on February 24, 2010 (File No. 333-128780))
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4.3***
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Indenture, dated November 9, 2010, by and among NCL Corporation Ltd. as Issuer and U.S. Bank National Association as Indenture Trustee with respect to $250.0 million 9.50%
Senior Notes due 2018
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4.4***
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Registration Rights Agreement, dated November 9, 2010, by and among NCL Corporation Ltd. and Deutsche Bank Securities Inc. with respect to $250.0 million 9.50% Senior
Notes
due 2018
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4.5*
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Form of Certificate of Ordinary Shares
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5.1*
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Opinion of Cox Hallett Wilkinson
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8.1*
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Tax opinion of O’Melveny & Myers LLP
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10.1**
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€298.0 million Pride of America Loans, dated as of April 4, 2003, by and among Ship Holding LLC and a syndicate of international banks and related Guarantee by NCL
Corporation Ltd. (incorporated herein by reference to Exhibit 4(e) to our registration statement on Form F-4 filed on October 3, 2005 (File No. 333-128780)) +
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10.2**
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Supplemental Amendments, dated June 1, 2005, to €298.0 million Pride of America Loans, dated as of April 4, 2003, by and among Pride of America Ship Holding, Inc., NCL
Corporation Ltd. and a syndicate of international banks (incorporated herein by reference to Exhibit 4.6 to our annual report on Form 20-F filed on March 29, 2006 (File No. 333- 128780))
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10.3**
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Seventh Supplemental Deed to €258.0 million Pride of America Loans and Sixth Supplemental Deed to €40.0 million Pride of America Loans, both dated
November 13, 2006, to €298.0 million Pride of America Loans, dated as of April 4, 2003, as amended, by an agreement dated April 20, 2004, by and among Pride of America Ship Holding, Inc. and a syndicate of international banks and
related Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.27 to our annual report on Form 20-F filed on March 6, 2007 (File No. 333-128780))
+
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1
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Exhibit
Number
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Description of Exhibit
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10.4**
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Eighth Supplemental Deed to €258.0 million Pride of America Loan and Seventh Supplemental Deed to €40.0 million Pride of America Loan, each dated as of
April 4, 2003, each as amended, dated December 21, 2007, by and among Pride of America Ship Holding, Inc., NCL Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantees by NCL Corporation Ltd.
(incorporated herein by reference to Exhibit 4.58 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780)) +
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10.5**
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Ninth Supplemental Deed to €258.0 million Pride of America Loan and Eighth Supplemental Deed to €40.0 million Pride of America Loan, each dated as of
April 4, 2003, each as amended, dated
April 2, 2009, by and among Pride of America Ship Holding, Inc., NCL Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd.
(incorporated by reference to Exhibit 4.36 to Amendment No. 1 to our annual report on Form 20-F filed on May 25, 2010 (File No. 333-128780)) +
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10.6
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Tenth Supplemental Deed to €258.0 million Pride of America Loan and Ninth Supplemental Deed to €40.0 million Pride of America Loan, each dated as of
April 4, 2003, each as amended, dated July 22, 2010, by and among Pride of America Ship Holding, LLC, NCL Corporation Ltd. and a syndicate of international banks ++
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10.7
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Eleventh Supplemental Deed to €258.0 million Pride of America Loan and Tenth Supplemental Deed to €40.0 million Pride of America Loan, each dated as of
April 4, 2003, each as amended, dated November 18, 2010, by and among Pride of America Ship Holding, LLC, NCL Corporation Ltd. and a syndicate of international banks
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10.8**
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Merchant Services Bankcard Agreement, dated as of March 26, 2004, among NCL Corporation Ltd., Chase Merchant Services, LLC and JPMorgan Chase Bank (incorporated herein by
reference to Exhibit 10(a) to our registration statement on Form F-4 filed on October 3, 2005
(File No. 333-128780))
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10.9**
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Facility Agreement, dated as of September 23, 2005, in connection with Letters of Credit required by the Merchant Services Bankcard Agreement, by and among NCL Corporation Ltd.
and a syndicate of international banks (incorporated herein by reference to Exhibit 4.9 to our annual report on
Form 20-F filed on March 29, 2006 (File No. 333-128780))
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10.10**
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First Supplemental Deed, dated November 13, 2006, to Facility Agreement, dated September 23, 2005, in connection with Letters of Credit required by the Merchant Services
Bankcard Agreement, by and among NCL Corporation Ltd. and a syndicate of international banks (incorporated herein by reference to Exhibit 4.29 to our annual report on Form 20-F filed on March 6, 2007
(File No. 333-128780))
+
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10.11**
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Third Supplemental Deed, dated December 21, 2007, to Facility Agreement, dated as of September 23, 2005, as amended, in connection with Letters of Credit required by the
Merchant Services Bankcard Agreement, by and among NCL Corporation Ltd., Norwegian Sun Limited, Norwegian Dawn Limited and a syndicate of international banks (incorporated herein by reference to Exhibit 4.61 to our annual report on Form 20-F filed
on March 13, 2008 (File No. 333-128780)) +
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10.12**
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$334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, by and among Norwegian Jewel Limited and a syndicate of international banks and related Guarantee by NCL
Corporation Ltd. (incorporated herein by reference to Exhibit 4(h) to our registration statement on Form F-4 filed on October 3, 2005 (File No. 333-128780)) +
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10.13**
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First Supplemental Deed, dated as of September 30, 2005, to $334.1 million Norwegian Jewel Loan, by and among Norwegian Jewel Limited, NCL Corporation Ltd. and a syndicate
of international banks (incorporated herein by reference to Exhibit 4.11 to our annual report on Form 20-F filed on March 29, 2006 (File No. 333-128780))
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2
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Exhibit
Number
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Description of Exhibit
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10.14**
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Second Supplemental Deed, dated April 4, 2006, and Third Supplemental Deed, dated November 13, 2006, to $334.1 million Norwegian Jewel Loan, dated as of April 20,
2004, as amended, by and among Norwegian Jewel Limited and a syndicate of international banks and related Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.30 to our annual report on Form 20-F filed on
March 6, 2007 (File No. 333-128780)) +
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10.15**
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Fourth Supplemental Deed, dated December 21, 2007, to $334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, as amended, by and among Norwegian Jewel
Limited, NCL Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.57 to our annual report on Form 20-F filed on March 13, 2008
(File No. 333-128780)) +
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10.16**
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Fifth Supplemental Deed, dated April 2, 2009, to $334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, as amended, by and among Norwegian Jewel Limited, NCL
Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated by reference to Exhibit 4.35 to Amendment No. 1 to our annual report on Form 20-F filed on May 25, 2010 (File
No. 333-128780)) +
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10.17
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Sixth Supplemental Deed, dated July 22, 2010, to $334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, as amended, by and among Norwegian Jewel Limited, NCL
Corporation Ltd. and a syndicate of international banks ++
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10.18
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Seventh Supplemental Deed, dated November 18, 2010, to $334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, as amended, by and among Norwegian Jewel Limited,
NCL Corporation Ltd. and a syndicate of international banks
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10.19**
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€308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of Hawai’i, Inc. and a syndicate of international banks and
related Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4(i) to our registration statement on Form F-4 filed on October 3, 2005 (File No. 333-128780)) +
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10.20**
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Second Supplemental Deed, dated as of September 30, 2005, to €308.1 million Pride of Hawai’i Loan, by and among Pride of Hawai’i, Inc., NCL Corporation Ltd.
and a syndicate of international banks (incorporated herein by reference to Exhibit 4.13 to our annual report on Form 20-F filed on March 29, 2006 (File No. 333-128780))
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10.21**
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Third Supplemental Deed, dated November 13, 2006, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, Inc. and a syndicate of international banks and related Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.31 to our annual report on Form 20-F filed on March 6, 2007 (File No. 333-128780))
+
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10.22**
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Fourth Supplemental Deed, dated December 21, 2007, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, Inc., NCL Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.59 to our annual report on Form 20-F filed on
March 13, 2008 (File No. 333-128780)) +
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10.23**
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Fifth Supplemental Deed, dated February 10, 2008, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, Inc., NCL Corporation Ltd. and a syndicate of international banks (incorporated herein by reference to Exhibit 4.60 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780)) +
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10.24**
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Sixth Supplemental Deed, dated April 2, 2009, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, Inc., NCL Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated by reference to Exhibit 4.37 to Amendment No. 1 to our annual report on Form 20-F filed
on May 25, 2010 (File No. 333-128780)) +
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3
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Exhibit
Number
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Description of Exhibit
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10.25
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Seventh Supplemental Deed, dated October 19, 2009, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, Inc., NCL Corporation Ltd. and a syndicate of international banks
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10.26
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Eighth Supplemental Deed, dated July 22, 2010, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, LLC, NCL Corporation Ltd. and a syndicate of international banks ++
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10.27
|
|
Ninth Supplemental Deed, dated November 18, 2010, to €308.1 million Pride of Hawai’i Loan, dated as of April 20, 2004, as amended, by and among Pride of
Hawai’i, LLC, NCL Corporation Ltd. and a syndicate of international banks
|
|
|
|
|
10.28**
|
|
Up to €624.0 million Norwegian Pearl and Norwegian Gem Revolving Loan Facility Agreement, dated October 7, 2005, by and among NCL Corporation Ltd. and a syndicate of
international banks (incorporated herein by reference to Exhibit 4.24 to our annual report on
Form 20-F filed on March 29, 2006 (File No. 333-128780))
|
|
|
|
|
10.29**
|
|
First Supplemental Deed, dated November 13, 2006, to up to €624.0 million Norwegian Pearl and Norwegian Gem Revolving Loan Facility Agreement, dated October 7,
2005, as amended, by and among NCL Corporation Ltd. and a syndicate of international banks (incorporated herein by reference to Exhibit 4.32 to our annual report on Form 20-F filed on March 6, 2007 (File No. 333-128780))
+
|
|
|
|
|
10.30**
|
|
Second Supplemental Deed, dated December 21, 2007, to €624.0 million Norwegian Pearl and Norwegian Gem Revolving Loan Facility Agreement, dated as of October 7,
2005, as amended, by and among NCL Corporation Ltd., Norwegian Pearl, Ltd., Norwegian Gem, Ltd. and a syndicate of international banks and related amended and restated Guarantees by Norwegian Pearl, Ltd. and Norwegian Gem, Ltd. (incorporated herein
by reference to Exhibit 4.55 to our annual report on
Form 20-F filed on March 13, 2008 (File No. 333-128780)) +
|
|
|
|
|
10.31**
|
|
Third Supplemental Deed, dated April 2, 2009, to €624.0 million Norwegian Pearl and Norwegian Gem Revolving Loan Facility Agreement, dated as of October 7, 2005, as
amended, by and among NCL Corporation Ltd., Norwegian Pearl, Ltd., Norwegian Gem, Ltd. and a syndicate of international banks (incorporated by reference to Exhibit 4.34 to Amendment No. 1 to our annual report on Form 20-F filed on May 25, 2010 (File
No. 333-128780)) +
|
|
|
|
|
10.32
|
|
Fourth Supplemental Deed, dated July 22, 2010, to €624.0 million Norwegian Pearl and Norwegian Gem Revolving Loan Facility Agreement, dated as of October 7,
2005, as amended, by and among NCL Corporation Ltd., Norwegian Pearl, Ltd., Norwegian Gem, Ltd. and a syndicate of international banks ++
|
|
|
|
|
10.33**
|
|
Shipbuilding Contract for Hull No. D33, dated September 7, 2006, by and between F3 Two, Ltd. and Aker Yards S.A., and AOM No. 1, dated September 7, 2006, AOM
No. 2, dated September 7, 2006, AOM No. 3, dated September 7, 2006, and AOM No. 4, dated September 7, 2006 (incorporated herein by reference to Exhibit 4.44 to our annual report on Form 20-F filed on March 6, 2007
(File No. 333-128780)) +
|
|
|
|
|
10.34**
|
|
Side Letter Agreement, dated as of September 7, 2006, by and between, F3 One, Ltd., F3 Two, Ltd. and Aker Yards S.A. (incorporated herein by reference to Exhibit 4.45 to our
annual report on
Form 20-F filed on March 6, 2007 (File No. 333-128780)) +
|
|
|
|
|
10.35**
|
|
Amendment No. 1, dated May 22, 2007, to Shipbuilding Contract for Hull No. D33, dated September 7, 2006, by and between F3 Two, Ltd. and Aker Yards S.A.
(incorporated herein by reference to Exhibit 4.66 to our annual report on Form 20-F filed on March 13, 2008
(File No. 333-128780)) +
|
4
|
|
|
|
|
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
|
10.36**
|
|
AOM No. 5, dated November 11, 2007, AOM No. 11, dated November 6, 2007, AOM No. 12, dated November 6, 2007, AOM No. 13, Revision C, dated
November 6, 2007, AOM No. 13, Revision D, dated December 15, 2007, AOM No. 14, dated November 6, 2007, AOM No. 16, dated November 6, 2007, AOM No. 18, dated November 6, 2007, AOM No. 18 A, dated
December 15, 2007, AOM No. 19, dated November 6, 2007, AOM No. 22, dated November 6, 2007, AOM No. 25, dated November 6, 2007, AOM No. 28 A, dated December 15, 2007, to Shipbuilding Contract for Hull
No. D33, dated September 7, 2006, by and between F3 Two, Ltd. and Aker Yards S.A. (incorporated herein by reference to Exhibit 4.68 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
+
|
|
|
|
|
10.37**
|
|
€662.9 million Syndicated Loan Facility, dated September 22, 2006, by and among F3 Two, Ltd. and a syndicate of international banks and related Guarantee by NCL
Corporation Ltd., for the construction of Hull D33 at Aker Yards S.A. (incorporated herein by reference to Exhibit 4.34 to our annual report on Form 20-F filed on March 6, 2007 (File No. 333-128780)) +
|
|
|
|
|
10.38**
|
|
First Supplemental Deed, dated December 21, 2007, to €662.9 million F3 Two Loan, dated as of September 22, 2006, as amended, by and among F3 Two, Ltd., NCL
Corporation Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated herein by reference to Exhibit 4.63 to our annual report on Form 20-F filed on March 13, 2008 (File
No. 333-128780)) +
|
|
|
|
|
10.39**
|
|
Second Supplemental Deed, dated April 24, 2008, to €662.9 million F3 Two Loan, dated as of September 22, 2006, as amended, by and among F3 Two, Ltd., NCL Corporation
Ltd. and a syndicate of international banks (incorporated herein by reference to Exhibit 4.70 to our annual report on Form 20-F filed on April 7, 2009 (File No. 333-128780)) +
|
|
|
|
|
10.40**
|
|
Third Supplemental Deed, dated April 2, 2009, to €662.9 million F3 Two Loan, dated as of September 22, 2006, as amended, by and among F3 Two, Ltd., NCL Corporation
Ltd. and a syndicate of international banks and related amended and restated Guarantee by NCL Corporation Ltd. (incorporated by reference to Exhibit 4.33 to Amendment No. 1 to our annual report on Form 20-F filed on May 25, 2010 (File No.
333-128780)) +
|
|
|
|
|
10.41
|
|
Fourth Supplemental Deed, dated June 9, 2010, to €662.9 million F3 Two Loan, dated as of September 22, 2006, as amended, by and among Norwegian Epic, Ltd., NCL Corporation Ltd.
and a syndicate of international banks ++
|
|
|
|
|
10.42
|
|
Fifth Supplemental Deed, dated July 22, 2010, to €662.9 million F3 Two Loan, dated as of September 22, 2006, as amended, by and among Norwegian Epic, Ltd., NCL Corporation Ltd.
and a syndicate of international banks ++
|
|
|
|
|
10.43**
|
|
Office Lease Agreement, dated as of November 27, 2006, by and between NCL (Bahamas) Ltd. and Hines Reit Airport Corporate Center LLC and related Guarantee by NCL Corporation Ltd.,
and First Amendment, dated November 27, 2006 (incorporated herein by reference to Exhibit 4.46 to our annual report on Form 20-F filed on March 6, 2007 (File No. 333-128780)) +
|
|
|
|
|
10.44**
|
|
Amendment No. 1, dated December 1, 2006, Amendment No. 2, dated March 20, 2007, Amendment No. 3, dated July 31, 2007, and Amendment No. 4, dated
December 10, 2007, to Office Lease Agreement, dated December 1, 2006, by and between Hines Reit Airport Corporate Center LLC and NCL (Bahamas) Ltd. (incorporated herein by reference to Exhibit 4.64 to our annual report on
Form 20-F
filed on March 13, 2008 (File No. 333-128780)) +
|
|
|
|
|
10.45***
|
|
Amendment No. 5, dated February 2, 2010, to Office Lease Agreement, dated December 1, 2006, by and between Hines Reit Airport Corporate Center LLC and NCL (Bahamas)
Ltd.
|
5
|
|
|
|
|
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
|
10.46**
|
|
Reimbursement and Distribution Agreement, dated August 17, 2007, by and among NCL Investment Ltd., Star Cruises Limited and NCL Corporation Ltd. (incorporated herein by
reference to Exhibit 4.49 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
|
|
|
|
|
10.47**
|
|
Shareholders’ Agreement, dated August 17, 2007, by and among NCL Investment Ltd., Star Cruises Limited and NCL Corporation Ltd. (incorporated herein by reference to
Exhibit 4.48 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
|
|
|
|
|
10.48**
|
|
Joinder, dated January 7, 2008, to the Shareholders’ Agreement, dated August 17, 2007, by and among NCL Corporation Ltd. and Star NCLC Holdings Ltd. (incorporated
herein by reference to Exhibit 4.52 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
|
|
|
|
|
10.49**
|
|
Joinder, dated January 7, 2008, to the Shareholders’ Agreement, dated August 17, 2007, by and among NCL Corporation Ltd. and NCL Investment II Ltd. (incorporated
herein by reference to Exhibit 4.53 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
|
|
|
|
|
10.50**
|
|
Joinder, dated January 8, 2008, to the Shareholders’ Agreement, dated August 17, 2007, by and among NCL Corporation Ltd. and TPG Viking I, L.P., TPG Viking II, L.P.
and TPG Viking AIV III, L.P. (incorporated herein by reference to Exhibit 4.51 to our annual report on Form 20-F filed on March 13, 2008 (File No. 333-128780))
|
|
|
|
|
10.51**
|
|
Bareboat Charter Agreement, dated January 2, 2009, by and between Ample Avenue Limited and NCL (Bahamas) Ltd. (incorporated herein by reference to Exhibit 4.73 to our annual report
on Form 20-F filed on April 7, 2009 (File No. 333-128780)) +
|
|
|
|
|
10.52
|
|
Bareboat Charter Agreement, dated August 27, 2010, by and between Ample Avenue Limited and NCL (Bahamas) Ltd. ++
|
|
|
|
|
10.53**
|
|
$750.0 million Credit Agreement, dated October 28, 2009, by and among NCL Corporation Ltd., various lenders and Nordea Bank Norge ASA
(incorporated by reference to Exhibit 4.39 to
Amendment No. 1 to our annual report on Form 20-F filed on May 25, 2010 (File No. 333-128780))
+
|
|
|
|
|
10.54**
|
|
First Lien Intercreditor Agreement, dated November 12, 2009, by and among Nordea Bank Norge ASA and U.S. Bank National Association (incorporated by reference to Exhibit 4.38 to our
annual report on Form 20-F filed on February 24, 2010 (File No. 333-128780))
|
|
|
|
|
10.55***
|
|
Shipbuilding Contract for Hull No. S.678, dated September 24, 2010, by and among Meyer Werft GMBH, Breakaway One, Ltd. and NCL Corporation Ltd. ++
|
|
|
|
|
10.56***
|
|
Shipbuilding Contract for Hull No. S.692, dated September 24, 2010, by and among Meyer Werft GMBH, Breakaway Two, Ltd. and NCL Corporation Ltd. ++
|
|
|
|
|
10.57
|
|
€529.8 million Breakaway One Credit Agreement, dated November 18, 2010, by and among Breakaway One, Ltd. and a syndicate of international banks and related Guarantee by NCL
Corporation Ltd. ++
|
|
|
|
|
10.58
|
|
€529.8 million Breakaway Two Credit Agreement, dated as of November 18, 2010, by and among Breakaway Two, Ltd. and a syndicate of international banks and related Guarantee by
NCL Corporation Ltd. ++
|
|
|
|
|
10.59***
|
|
First Amendment, dated December 21, 2010, to €529.8 million Breakaway Two Credit Agreement, dated as of November 18, 2010, by and among Breakaway Two, Ltd. and a
syndicate of international banks and a related Guarantee by NCL Corporation Ltd.
|
|
|
|
|
10.60
|
|
€126.1 million Pride of Hawai’i Credit Agreement, dated November 18, 2010, by and among Pride of Hawaii, LLC and a syndicate of international banks and related Guarantee
by NCL Corporation Ltd. ++
|
6
|
|
|
|
|
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
|
10.61
|
|
€126.1 million Norwegian Jewel Credit Agreement, dated November 18, 2010, by and among Norwegian Jewel Limited and a syndicate of international banks and related Guarantee by
NCL Corporation Ltd. ++
|
|
|
|
|
10.62***
|
|
Employment Agreement by and between NCL (Bahamas) Ltd. and Kevin M. Sheehan, entered into on May 8, 2009, and effective on November 6, 2008
|
|
|
|
|
10.63***
|
|
Employment Agreement by and between NCL (Bahamas) Ltd. and Wendy A. Beck, entered into on October 21, 2010
|
|
|
|
|
10.64***
|
|
Employment Agreement by and between NCL (Bahamas) Ltd. and Andrew Stuart, entered into on July 9, 2008
|
|
|
|
|
10.65***
|
|
Employment Agreement by and between NCL (Bahamas) Ltd. and Maria Miller, entered into on June 1, 2009
|
|
|
|
|
10.66***
|
|
Employment Agreement by and between NCL (Bahamas) Ltd. and Robert Becker, entered into on March 17, 2008
|
|
|
|
|
10.67***
|
|
NCL (Bahamas) Ltd. Senior Management Retirement Savings Plan, amended and restated as of January 1, 2008
|
|
|
|
|
10.68***
|
|
NCL (Bahamas) Ltd. Supplemental Executive Retirement Plan, amended and restated as of January 1, 2008
|
|
|
|
|
21.1***
|
|
List of Subsidiaries of NCL Corporation Ltd.
|
|
|
|
|
23.1***
|
|
Consent of PricewaterhouseCoopers LLP
|
|
|
|
|
23.2*
|
|
Consent of Cox Hallett Wilkinson (included in Exhibit 5.2)
|
|
|
|
|
23.3*
|
|
Consent of O’Melveny & Myers LLP (included in Exhibit 8.1)
|
|
|
|
|
24.1***
|
|
Powers of attorney
|
|
+
|
Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted portions have been filed separately with the SEC.
|
|
++
|
Confidential treatment has been requested with respect to certain portions of this exhibit. Omitted portions have been filed separately with the SEC.
|
|
*
|
To be filed by amendment.
|
|
**
|
Incorporated by reference.
|
7
Exhibit 10.6
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 22 July 2010
PRIDE OF AMERICA SHIP HOLDING, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
TENTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
SECURED LOAN AGREEMENT
dated 4 April 2003 for the equivalent amount in
United States Dollars and/or Euro of up to €258,000,000
pre- and
post redelivery finance for one 1,075 cabin luxury cruise vessel
identified with no 7671 and working title “Project
America”
at the yard of Lloyd Werft Bremerhaven GmbH
(now named “PRIDE OF AMERICA”)
STEPHENSON
HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref: 1253/41-25887/42-02591/43-03502/44-01536/44-02443/45-01870/46-01273/
47-02889/49-00641
CONTENTS
|
|
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|
|
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|
|
|
|
Page
|
|
|
1
|
|
Definitions and Construction
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
|
2
|
|
|
|
|
|
|
3
|
|
Conditions Precedent
|
|
|
4
|
|
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4
|
|
Representations and Warranties
|
|
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6
|
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5
|
|
Fee and Expenses
|
|
|
7
|
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6
|
|
Further Assurance
|
|
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8
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7
|
|
Counterparts
|
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8
|
|
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8
|
|
Notices
|
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8
|
|
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|
|
9
|
|
Governing Law
|
|
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9
|
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|
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10
|
|
Jurisdiction
|
|
|
9
|
|
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|
|
|
Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
13
|
|
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|
|
|
|
Schedule 2
|
|
Amendment of Original Loan Agreement
|
|
|
15
|
|
|
|
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|
|
Schedule 3
|
|
Amendment of Original Guarantee
|
|
|
19
|
|
|
|
|
|
|
Schedule 4
|
|
Repayment Schedule calculated using the Application of Proceeds Formulation
|
|
|
20
|
|
|
|
|
|
|
Schedule 5
|
|
Repayment Schedule for the purpose of calculating the amount of the Margin payable
|
|
|
21
|
|
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
TENTH SUPPLEMENTAL DEED
DATED 22 July 2010
BETWEEN:
|
(1)
|
PRIDE OF AMERICA SHIP HOLDING,
LLC
of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower
(the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(4)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(A)(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS:
|
(A)
|
By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental
agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the
“Third Supplement”
), a fourth supplemental agreement thereto dated 3 August 2005, a fifth supplemental agreement
thereto dated as of 30 September 2005, a sixth supplemental agreement thereto dated 22 December 2005, a seventh supplemental agreement dated 13 November 2006, an eighth supplemental agreement thereto dated 21 December 2007 and a
ninth supplemental agreement thereto dated 2 April 2009 entered into between the Borrower or its predecessor Ship Holding LLC (
“SHLLC”
) as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the
Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of the
equivalent in Dollars and/or Euro of two hundred and fifty eight million Euro (€258,000,000) (the
“Loan”
) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such terms are defined in the
Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended,
supplemented and/or restated from time to time (the
“Original Guarantee”
) and a first preferred mortgage dated 1 June 2005 and effective 7 June 2005 as amended and/or supplemented from time to time (the
“Mortgage”
).
|
|
(B)
|
The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to the amendment of the definition of Permitted
Indebtedness (as defined in the Original Loan Agreement), to enable any member(s) of the NCLC Group to order the New Vessels (as defined in the Loan Agreement) (or either of them), and to allow the Guarantor to pay dividends after the listing of the
ordinary capital stock of the Guarantor on an Approved Stock Exchange (as defined in the Original Guarantee).
|
|
(C)
|
The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this tenth supplement to the Original
Loan Agreement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“Application of Proceeds Formulation”
means the formulation set out
in Clause 3.3;
“Effective Date”
means the date on which the conditions precedent set out in Clause 3.1
are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as
amended by this Deed;
“Maximum Amount of the Delayed Principal Amount”
shall have the meaning to be specified
for such term in the Loan Agreement; and
“New Process Agent”
means EC3 Services Limited whose registered
office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date:
|
|
|
2.1.1
|
the Original Loan Agreement and the Original Guarantee shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 or
Schedule 3 to this Deed (as the case may be) had been inserted or amended to read as set out in the second column of Schedule 2 or Schedule 3 to this Deed (as the case may be);
|
2
|
|
2.1.2
|
schedule 10 to the Original Loan Agreement had been deleted and substituted with Schedule 4 to this Deed; and
|
|
|
2.1.3
|
a new schedule 11 had been added to the Original Loan Agreement in the form of Schedule 5 to this Deed.
|
|
|
2.2
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from the Effective Date:
|
|
|
2.2.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.2.2
|
the Security Documents (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) to which it is a party shall apply to,
and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged,
impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement;
and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain in full force and
effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
3
|
|
3.1
|
The amendment of the Original Loan Agreement and the Original Guarantee provided for in Clause 2 is conditional upon and shall not be effective unless and until the
Agent has received the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto;
|
|
|
(c)
|
evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
|
|
|
(d)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
4
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or
shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Cash Sweep Credit Facilities have been cancelled and/or prepaid pro rata based on the Maximum Amount of the Delayed Principal Amount (as defined in
the facility agreement for each Cash Sweep Credit Facility) for each Cash Sweep Credit Facility (or, if applicable, tranche thereof) by an aggregate amount of one hundred million Dollars (USD100,000,000);
|
|
|
3.1.3
|
a ninth amendment to the Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center;
|
|
|
3.1.4
|
a Certified Copy of a confirmation in respect of each of the Hermes Vessel Owner Second Guarantees duly executed by the owners of the Hermes Vessels other than the
Borrower;
|
|
|
3.1.5
|
a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments to the Original Loan Agreement and the Original Guarantee
contemplated by this Deed;
|
|
|
3.1.6
|
evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each NCLC Group Credit Facility have
been satisfied; and
|
|
|
3.1.7
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2) other than that Event of Default waived by the Agent pursuant to the letters dated
9 March 2004 and 20 April 2004 from the Agent to SHLLC.
5
|
|
3.2
|
If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit
the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence
to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the
Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
|
|
|
3.3
|
The amount of the Loan to be prepaid pursuant to Clause 3.1.2 shall constitute a prepayment pursuant to clause 4.10 of the Loan Agreement and such prepayment and any
further prepayments to be made pursuant to clause 4.10 of the Loan Agreement shall be applied:
|
|
|
3.3.1
|
entirely to the Delayed Principal Amount; and
|
|
|
3.3.2
|
in forward order of maturity with respect to the dates of the Revised Repayments.
|
For illustrative purposes:
|
|
(a)
|
any prepayment made pursuant to Clause 3.1.2 shall be applied to the repayment of the Delayed Principal Amount in an amount equal to the difference between the amounts
in the third column (
Originally Scheduled Repayments
) and the fifth column (
Revised Repayments
) of schedule 10 to the Original Loan Agreement of each Revised Repayment i.e. in the amount of USD7,260,085.71 from 6 June 2014;
|
|
|
(b)
|
a revised repayment schedule (schedule 10 to the Loan Agreement and Schedule 4 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 and the amount of each Revised Repayment to be made after such prepayment; and
|
|
|
(c)
|
a revised repayment schedule (schedule 11 to the Loan Agreement and Schedule 5 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 in so far as they relate to the calculation of the amount of the Margin to be paid after such prepayment.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
6
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee;
|
|
4.1.4
|
except for the recordation of the amendment to the Mortgage with the United States Coast Guard National Vessel Documentation Center, all authorisations, approvals,
consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents
contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower shall pay to each of the Lenders (directly or through the Agent) on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the NCLC Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Loan Agreement,
the Loan Agreement or the Agency and Trust Deed to the contrary, no Lender shall be required to share with the other Lenders, the Agent, the Hermes Agent and/or the Trustee any such handling/work fee received.
|
7
|
|
5.2
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of, or in connection with, the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.3
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
8
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and
shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and shall
be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
9
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Micha Withoft
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Micha Withoft
|
|
PRIDE OF AMERICA SHIP HOLDING, LLC
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
10
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Micha Withoft
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Micha Withoft
|
|
NCL CORPORATION LTD.
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
|
|
as a Lender
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
KFW
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
as a Lender
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
as the Agent and the Trustee
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
11
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
|
|
as the Hermes Agent
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ David Griffiths
|
|
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
12
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
13
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Martin Hugger/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
14
Schedule 2
Amendment of Original Loan Agreement
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Application of Proceeds Formulation”
|
|
means the following formulation for the application of any amount of the Loan to be prepaid pursuant to Clause 4.10:
(i) entirely to
the Delayed Principal Amount; and
(ii) in respect of any prepayment of the Loan to be made pursuant to clause
3.1.2 of the Tenth Supplemental Deed, in forward order of maturity with respect to the dates of the Revised Repayments; and
(iii) in respect of any other prepayment of the Loan to be made pursuant to Clause 4.10,
in forward order of maturity with respect to the dates of the Revised Repayments, subject to the approval of all of the Lenders in respect of each such prepayment and, if the approval of all of the Lenders is not obtained, in inverse order of
maturity with respect to the dates of the Revised Repayments;
|
|
|
|
|
Clause 1.1, definition of
“Margin”
(paragraph (ii))
|
|
(ii) from 1 January 2009 until 31 December 2009 inclusive
the rate of two point two five per cent (2.25%) per annum and thereafter two point seven five per cent (2.75%) per annum on the Delayed Principal Amount;
notwithstanding the provisions of the penultimate paragraph of Clause 4.10 (as more particularly described in the final paragraph of Clause
4.10);
|
|
|
|
|
Clause 1.1, definition (new) of
“Maximum Amount of the Delayed Principal Amount”
|
|
means USD50,820,600.00;
|
|
|
|
|
Clause 1.1, definition (new) of
“New Vessels”
|
|
means the two (2) newbuild cruise vessels each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of
passenger cabins or gross or net tonnage, not on order by a member of the NCLC Group as of the Effective Date (as defined in the Tenth Supplemental Deed);
|
15
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Permitted Indebtedness”
|
|
means (i) any monies borrowed or raised other than from any direct or indirect shareholder of the Borrower prior to the date on which the last of the Ninth Supplemental Deed and the
Amendment Documents have been signed by all the parties thereto and notified by the Borrower to the Agent prior to such date; (ii) the Letter of Credit Facilities; (iii) Permitted Refinancing Indebtedness and (iv) one or more financing arrangements
entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term sheet(s) related to such financing arrangement(s) having been disclosed by the Borrower to Hermes prior to their execution by the
Borrower or any other member of the NCLC Group and such financing arrangement(s) being on terms satisfactory to Hermes. The term sheet(s) will be disclosed to Hermes on the basis that the terms of such financing arrangement(s) shall be deemed
satisfactory unless Hermes notifies the Borrower to the contrary within five (5) business days (in the city in which Hermes has its office) of receipt of the term sheet(s);
|
|
|
|
|
Clause 1.1, definition of
“Tenth Supplemental Deed”
|
|
means the tenth supplemental deed
dated 2010 to this Agreement;
|
|
|
|
|
Clause 1.1, definition (new) of
“Total Delayed Principal Amount”
|
|
means USD280,561,651.28, being the aggregate of the Maximum Amount of the Delayed Principal Amount (as defined in the facility agreement for each Cash Sweep Credit Facility) for
each Cash Sweep Credit Facility (or, if applicable, tranche thereof);
|
|
|
|
|
Clause 4.1
|
|
On giving at least thirty (30) days’ prior notice to the Agent, the Borrower may on the last day of a Pre-Redelivery Interest Period or an Interest Period prepay (without
premium or penalty, subject to Clause 4.8) the whole or any relevant part of the Loan (but if in part in an amount of five million Dollars (USD5,000,000) or the equivalent amount in Euro (as the case may be) or an integral multiple thereof). In the
case of a prepayment of part of the Loan, the proportion of that part payable in Dollars or Euro (as the case may be) shall correspond to the proportion of the Loan denominated in that currency at the prepayment date. Notwithstanding anything to the
contrary in this Clause 4.1, any prepayment made before an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid shall be governed by Clause 4.10.
|
|
|
|
|
Clause 4.7 (third sentence)
|
|
Subject to Clause 4.9 and Clause 4.10, each prepayment under this Agreement shall be applied in satisfaction of the Borrower’s remaining obligations under Clause 3 in inverse
chronological order and Schedule 10 and Schedule 11 shall be recalculated and agreed in accordance with Clause 4.10.
|
16
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 4.10
|
|
Notwithstanding anything to the contrary in this Agreement, other than in respect of ordinary refinancings, no voluntary prepayment of
the Loan may be made before an amount equal to the Total Delayed Principal Amount has been cancelled and/or prepaid and/or repaid unless pro rata prepayments, reductions and/or cancellations of the other Cash Sweep Credit Facilities are to be made.
The prepayment, reduction and/or cancellation to be made under each Cash Sweep Credit Facility shall be calculated based on each Cash Sweep Credit Facility’s remaining outstanding Delayed Principal Amount (as defined in this Agreement in
respect of the Loan and as defined in the relevant facility agreement in respect of each of the other Cash Sweep Credit Facilities) as of the date of the prepayment, reduction and/or cancellation, save for any prepayment to be made pursuant to the
Tenth Supplemental Deed. Each such outstanding Delayed Principal Amount or Maximum Amount of the Delayed Principal Amount (as the case may be), to the extent it is not already denominated in Dollars, shall be converted into Dollars on the date
falling ten (10) Business Days prior to the relevant prepayment, reduction and/or cancellation date at the rate which appears on the Reuters Page ECB37 at 1.30 p.m. London time on that date, for the purposes of such calculation. Subject to
Clause 4.8 and the rest of this Clause 4.10, with respect to the Loan on the relevant date of measurement, any prepayment made before an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid
and/or repaid shall be applied in accordance with the Application of Proceeds Formulation. As at the Effective Date (as defined in the Tenth Supplemental Deed), Schedule 10 contains a repayment schedule calculated following the prepayment of an
amount of the Loan as more particularly described in clause 3.1.2 of the Tenth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 10 shall be recalculated using the
Application of Proceeds Formulation or in accordance with Clause 4.7 (as the case may be), shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part
of this Agreement.
Notwithstanding anything to the contrary, paragraph
(ii) of the definition of Margin shall continue to apply as if the amount of each Revised Repayment or Originally Scheduled Repayment prepaid as described in the last three (3) sentences of the previous paragraph of this Clause 4.10 or in
Clause 4.1 had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised Repayment or Originally Scheduled Repayment prior to any voluntary prepayment made under this Clause 4.10
pursuant to the Tenth Supplemental Deed. As at the Effective Date (as defined in the Tenth Supplemental Deed), Schedule 11 contains a repayment schedule calculated following the prepayment of an amount of the Loan as more particularly described in
clause 3.1.2 of the Tenth Supplemental Deed, on the basis that the amount of each such Revised Repayment prepaid had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised
Repayment prior to any voluntary prepayment made under this Clause 4.10 pursuant to the Tenth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 11 shall be recalculated on
the basis described in this paragraph of this Clause 4.10, shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part of this
Agreement.
|
17
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 5.3.1
|
|
Subject to the other provisions of this Clause 5, the Borrower may give notice to the Agent to be received by the Agent not later than 9.00 a.m. London time five (5) Business Days
prior to the commencement of each Pre-Redelivery Interest Period in respect of a Portion or part thereof or Interest Period in respect of the Loan (prior to the Conversion Date) or the Delayed Principal Amount, specifying whether that interest
period is to be of three (3) or six (6) months’ duration. Pre-Redelivery Interest Periods shall commence, in the case of the first in respect of the first part of Portion 1 and Portion 2 to be drawn down, on the First Drawdown Date, in the case
of the first in respect of the first part of Portion 3 to be drawn down on the first Pre-Redelivery Interest Payment Date and, in the case of Pre-Redelivery Interest Periods other than the first in respect of any Portion or part thereof, on the
expiry of the preceding Pre-Redelivery Interest Period. Interest Periods in respect of the Loan and the Delayed Principal Amount shall commence, in the case of the first, on the Termination Date and 8 June 2009 respectively and, in the case of
Interest Periods other than the first, on the expiry of the preceding Interest Period.
|
18
Schedule 3
Amendment of Original Guarantee
|
|
|
|
|
Clause
|
|
Amendment
|
|
Clause 10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Loan Agreement or
this Deed.
|
|
|
|
|
Clause 10.10 (new)
|
|
The Guarantor shall not (and will procure that no other company in the NCLC Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is
available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing arrangements.
|
|
|
|
|
Clause 11.3
|
|
The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other
distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the NCLC Group, (ii) the Guarantor may pay dividends in respect of tax liability to each relevant
jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the NCLC Group being treated as a pass-through entity
or attributable to any member of the NCLC Group, and (iii) after the later of (x) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been
prepaid and/or repaid, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such
payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend and (II) after giving effect to such dividend
the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 of the Guarantee is less than 5.50:1.00. The Agent shall
use the Application of Proceeds Formulation to determine whether an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid.
The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions
will be received promptly by the Guarantor directly or indirectly from the Borrower’s member(s) or shareholder(s) (if such member or shareholder is not the Guarantor) by way of dividend.
|
19
Schedule 4
Repayment Schedule calculated using the Application of Proceeds Formulation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
New Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
6-Jun-10
|
|
|
177,872,098.82
|
|
|
|
12,705,150.00
|
|
|
|
38,115,450.00
|
|
|
|
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
177,872,098.82
|
|
|
|
12,705,150.00
|
|
|
|
38,115,450.00
|
|
|
|
|
|
|
|
215,987,548.82
|
|
|
Amendment Prepayment
|
|
|
177,872,098.82
|
|
|
|
|
|
|
|
38,115,450.00
|
|
|
|
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
177,872,098.82
|
|
|
|
|
|
|
|
20,001,570.30
|
|
|
|
18,113,879.70
|
|
|
|
197,873,669.12
|
|
|
6-Dec-10
|
|
|
165,166,948.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
—
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
165,166,948.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
|
|
|
|
197,873,669.12
|
|
|
6-Jun-11
|
|
|
152,461,798.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
203,282,398.82
|
|
|
|
|
|
|
|
152,461,798.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
185,168,519.12
|
|
|
6-Dec-11
|
|
|
139,756,648.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
190,577,248.82
|
|
|
|
|
|
|
|
139,756,648.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
172,463,369.12
|
|
|
6-Jun-12
|
|
|
127,051,498.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
177,872,098.82
|
|
|
|
|
|
|
|
127,051,498.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
159,758,219.12
|
|
|
6-Dec-12
|
|
|
114,346,348.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
165,166,948.82
|
|
|
|
|
|
|
|
114,346,348.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
147,053,069.12
|
|
|
6-Jun-13
|
|
|
101,641,198.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
152,461,798.82
|
|
|
|
|
|
|
|
101,641,198.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
134,347,919.12
|
|
|
6-Dec-13
|
|
|
88,936,048.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
139,756,648.82
|
|
|
|
|
|
|
|
88,936,048.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
121,642,769.12
|
|
|
6-Jun-14
|
|
|
76,230,898.82
|
|
|
|
12,705,150.00
|
|
|
|
43,560,514.29
|
|
|
|
19,965,235.71
|
|
|
|
119,791,413.11
|
|
|
|
|
|
|
|
76,230,898.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
108,937,619.12
|
|
|
8-Dec-14
|
|
|
63,525,748.82
|
|
|
|
12,705,150.00
|
|
|
|
36,300,428.58
|
|
|
|
19,965,235.71
|
|
|
|
99,826,177.40
|
|
|
|
|
|
|
|
63,525,748.82
|
|
|
|
12,705,150.00
|
|
|
|
32,706,720.30
|
|
|
|
12,705,150.00
|
|
|
|
96,232,469.12
|
|
|
6-Jun-15
|
|
|
50,820,598.82
|
|
|
|
12,705,150.00
|
|
|
|
29,040,342.87
|
|
|
|
19,965,235.71
|
|
|
|
79,860,941.69
|
|
|
|
|
|
|
|
50,820,598.82
|
|
|
|
12,705,150.00
|
|
|
|
29,040,342.87
|
|
|
|
16,371,527.43
|
|
|
|
79,860,941.69
|
|
|
7-Dec-15
|
|
|
38,115,448.82
|
|
|
|
12,705,150.00
|
|
|
|
21,780,257.16
|
|
|
|
19,965,235.71
|
|
|
|
59,895,705.98
|
|
|
|
|
|
|
|
38,115,448.82
|
|
|
|
12,705,150.00
|
|
|
|
21,780,257.16
|
|
|
|
19,965,235.71
|
|
|
|
59,895,705.98
|
|
|
6-Jun-16
|
|
|
25,410,298.82
|
|
|
|
12,705,150.00
|
|
|
|
14,520,171.45
|
|
|
|
19,965,235.71
|
|
|
|
39,930,470.27
|
|
|
|
|
|
|
|
25,410,298.82
|
|
|
|
12,705,150.00
|
|
|
|
14,520,171.45
|
|
|
|
19,965,235.71
|
|
|
|
39,930,470.27
|
|
|
6-Dec-16
|
|
|
12,705,148.82
|
|
|
|
12,705,150.00
|
|
|
|
7,260,085.74
|
|
|
|
19,965,235.71
|
|
|
|
19,965,234.56
|
|
|
|
|
|
|
|
12,705,148.82
|
|
|
|
12,705,150.00
|
|
|
|
7,260,085.74
|
|
|
|
19,965,235.71
|
|
|
|
19,965,234.56
|
|
|
6-Jun-17
|
|
|
—
|
|
|
|
12,705,148.82
|
|
|
|
—
|
|
|
|
19,965,234.56
|
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
12,705,148.82
|
|
|
|
—
|
|
|
|
19,965,234.56
|
|
|
|
—
|
|
20
Schedule 5
Repayment Schedule for the purpose of calculating the amount of the Margin payable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
New Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
6-Jun-10
|
|
|
177,872,098.82
|
|
|
|
12,705,150.00
|
|
|
|
38,115,450.00
|
|
|
|
—
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
177,872,098.82
|
|
|
|
12,705,150.00
|
|
|
|
38,115,450.00
|
|
|
|
—
|
|
|
|
215,987,548.82
|
|
|
Amendment Repayment
|
|
|
177,872,098.82
|
|
|
|
—
|
|
|
|
38,115,450.00
|
|
|
|
—
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
166,345,084.46
|
|
|
|
|
|
|
|
31,528,584.66
|
|
|
|
18,113,879.70
|
|
|
|
197,873,669.12
|
|
|
6-Dec-10
|
|
|
165,166,948.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
—
|
|
|
|
215,987,548.82
|
|
|
|
|
|
|
|
153,639,934.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
—
|
|
|
|
197,873,669.12
|
|
|
6-Jun-11
|
|
|
152,461,798.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
203,282,398.82
|
|
|
|
|
|
|
|
140,934,784.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
185,168,519.12
|
|
|
6-Dec-11
|
|
|
139,756,648.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
190,577,248.82
|
|
|
|
|
|
|
|
128,229,634.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
172,463,369.12
|
|
|
6-Jun-12
|
|
|
127,051,498.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
177,872,098.82
|
|
|
|
|
|
|
|
115,524,484.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
159,758,219.12
|
|
|
6-Dec-12
|
|
|
114,346,348.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
165,166,948.82
|
|
|
|
|
|
|
|
102,819,334.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
147,053,069.12
|
|
|
6-Jun-13
|
|
|
101,641,198.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
152,461,798.82
|
|
|
|
|
|
|
|
90,114,184.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
134,347,919.12
|
|
|
6-Dec-13
|
|
|
88,936,048.82
|
|
|
|
12,705,150.00
|
|
|
|
50,820,600.00
|
|
|
|
12,705,150.00
|
|
|
|
139,756,648.82
|
|
|
|
|
|
|
|
77,409,034.46
|
|
|
|
12,705,150.00
|
|
|
|
44,233,734.66
|
|
|
|
12,705,150.00
|
|
|
|
121,642,769.12
|
|
|
6-Jun-14
|
|
|
76,230,898.82
|
|
|
|
12,705,150.00
|
|
|
|
43,560,514.29
|
|
|
|
19,965,235.71
|
|
|
|
119,791,413.11
|
|
|
|
|
|
|
|
69,323,939.01
|
|
|
|
12,705,150.00
|
|
|
|
39,613,680.11
|
|
|
|
12,705,150.00
|
|
|
|
108,937,619.12
|
|
|
8-Dec-14
|
|
|
63,525,748.82
|
|
|
|
12,705,150.00
|
|
|
|
36,300,428.58
|
|
|
|
19,965,235.71
|
|
|
|
99,826,177.40
|
|
|
|
|
|
|
|
61,238,843.55
|
|
|
|
12,705,150.00
|
|
|
|
34,993,625.57
|
|
|
|
12,705,150.00
|
|
|
|
96,232,469.12
|
|
|
6-Jun-15
|
|
|
50,820,598.82
|
|
|
|
12,705,150.00
|
|
|
|
29,040,342.87
|
|
|
|
19,965,235.71
|
|
|
|
79,860,941.69
|
|
|
|
|
|
|
|
50,820,598.82
|
|
|
|
12,705,150.00
|
|
|
|
29,040,342.87
|
|
|
|
16,371,527.43
|
|
|
|
79,860,941.69
|
|
|
7-Dec-15
|
|
|
38,115,448.82
|
|
|
|
12,705,150.00
|
|
|
|
21,780,257.16
|
|
|
|
19,965,235.71
|
|
|
|
59,895,705.98
|
|
|
|
|
|
|
|
38,115,448.82
|
|
|
|
12,705,150.00
|
|
|
|
21,780,257.16
|
|
|
|
19,965,235.71
|
|
|
|
59,895,705.98
|
|
|
6-Jun-16
|
|
|
25,410,298.82
|
|
|
|
12,705,150.00
|
|
|
|
14,520,171.45
|
|
|
|
19,965,235.71
|
|
|
|
39,930,470.27
|
|
|
|
|
|
|
|
25,410,298.82
|
|
|
|
12,705,150.00
|
|
|
|
14,520,171.45
|
|
|
|
19,965,235.71
|
|
|
|
39,930,470.27
|
|
|
6-Dec-16
|
|
|
12,705,148.82
|
|
|
|
12,705,150.00
|
|
|
|
7,260,085.74
|
|
|
|
19,965,235.71
|
|
|
|
19,965,234.56
|
|
|
|
|
|
|
|
12,705,148.82
|
|
|
|
12,705,150.00
|
|
|
|
7,260,085.74
|
|
|
|
19,965,235.71
|
|
|
|
19,965,234.56
|
|
|
6-Jun-17
|
|
|
—
|
|
|
|
12,705,148.82
|
|
|
|
—
|
|
|
|
19,965,234.56
|
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
12,705,148.82
|
|
|
|
—
|
|
|
|
19,965,234.56
|
|
|
|
—
|
|
21
DATED 22 July 2010
PRIDE OF AMERICA SHIP HOLDING, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
NINTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
SECURED LOAN AGREEMENT
dated 4 April 2003 for the equivalent amount in
United States Dollars of up to €40,000,000
pre- and post redelivery
finance for one 1,075 cabin luxury cruise vessel
identified with no 7671 and working title “Project America”
at the yard of Lloyd Werft Bremerhaven GmbH
(now named “PRIDE OF AMERICA”)
STEPHENSON
HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref: 1253/41-25887/42-02591/43-03502/44-01536/44-02443/45-01870/46-01273/
47-02889/49-00641
CONTENTS
|
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Page
|
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1
|
|
Definitions and Construction
|
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2
|
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|
|
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2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
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2
|
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3
|
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Conditions Precedent
|
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3
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4
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Representations and Warranties
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6
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5
|
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Fee and Expenses
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7
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6
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Further Assurance
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8
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7
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Counterparts
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8
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8
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Notices
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8
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9
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Governing Law
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9
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10
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Jurisdiction
|
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|
9
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Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
12
|
|
|
|
|
|
|
Schedule 2
|
|
Amendment of Original Loan Agreement
|
|
|
14
|
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|
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|
|
Schedule 3
|
|
Amendment of Original Guarantee
|
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|
17
|
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|
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|
|
Schedule 4
|
|
Repayment Schedule calculated using the Application of Proceeds Formulation
|
|
|
18
|
|
|
|
|
|
|
Schedule 5
|
|
Repayment Schedule for the purpose of calculating the amount of the Margin payable
|
|
|
19
|
|
NINTH SUPPLEMENTAL DEED
DATED 22 JULY 2010
BETWEEN:
|
(1)
|
PRIDE OF AMERICA SHIP HOLDING,
LLC of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(4)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS
:
|
(A)
|
By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental
agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the
“Third Supplement”
), a fourth supplemental agreement thereto dated as of 30 September 2005, a fifth supplemental
agreement thereto dated 10 March 2006, a sixth supplemental agreement dated 13 November 2006, a seventh supplemental deed thereto dated 21 December 2007 and an eighth supplemental deed thereto dated 2 April 2009 entered into
between the Borrower or its predecessor Ship Holding LLC (
“SHLLC”
) as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as
trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of the equivalent in Dollars of forty million Euro (€40,000,000) (the
“Loan”
) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such terms are defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the
Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended, supplemented and/or restated from time to time (the
“Original Guarantee”
) and a first
preferred mortgage dated 1 June 2005 and effective 7 June 2005 as amended and/or supplemented from time to time (the
“Mortgage”
).
|
|
(B)
|
The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to the amendment of the definition of Permitted
Indebtedness (as defined in the Original Loan Agreement), to enable any member(s) of the NCLC Group to order the New Vessels (as defined in the Loan Agreement) (or either of them), and to allow the Guarantor to pay dividends after the listing of the
ordinary capital stock of the Guarantor on an Approved Stock Exchange (as defined in the Original Guarantee).
|
|
(C)
|
The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this ninth supplement to the Original
Loan Agreement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“Application of Proceeds Formulation”
means the formulation set out
in Clause 3.3;
“Effective Date”
means the date on which the conditions precedent set out in Clause 3.1
are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as
amended by this Deed;
“Maximum Amount of the Delayed Principal Amount”
shall have the meaning to be specified
for such term in the Loan Agreement; and
“New Process Agent”
means EC3 Services Limited whose registered
office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date:
|
|
|
2.1.1
|
the Original Loan Agreement and the Original Guarantee shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 or
Schedule 3 to this Deed (as the case may be) had been inserted or amended to read as set out in the second column of Schedule 2 or Schedule 3 to this Deed (as the case may be);
|
|
|
2.1.2
|
schedule 10 to the Original Loan Agreement had been deleted and substituted with Schedule 4 to this Deed; and
|
2
|
|
2.1.3
|
a new schedule 11 had been added to the Original Loan Agreement in the form of Schedule 5 to this Deed.
|
|
|
2.2
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from the Effective Date:
|
|
|
2.2.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.2.2
|
the Security Documents (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) to which it is a party shall apply to,
and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged,
impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement;
and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain in full force and
effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
The amendment of the Original Loan Agreement and the Original Guarantee provided for in Clause 2 is conditional upon and shall not be effective unless and until the
Agent has received the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto;
|
3
|
|
(c)
|
evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
|
|
|
(d)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
4
or (if applicable) certifying that there has been no change to the statements made in his
or her secretary’s certificate last provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if
required by the Agent, the members or shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Cash Sweep Credit Facilities have been cancelled and/or prepaid pro rata based on the Maximum Amount of the Delayed Principal Amount (as defined in
the facility agreement for each Cash Sweep Credit Facility) for each Cash Sweep Credit Facility (or, if applicable, tranche thereof) by an aggregate amount of one hundred million Dollars (USD100,000,000);
|
|
|
3.1.3
|
a ninth amendment to the Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center;
|
|
|
3.1.4
|
a Certified Copy of a confirmation in respect of each of the Hermes Vessel Owner Second Guarantees duly executed by the owners of the Hermes Vessels other than the
Borrower;
|
|
|
3.1.5
|
evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each NCLC Group Credit Facility have
been satisfied; and
|
|
|
3.1.6
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2).
|
|
3.2
|
If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit
the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence
to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the
Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
|
5
|
|
3.3
|
The amount of the Loan to be prepaid pursuant to Clause 3.1.2 shall constitute a prepayment pursuant to clause 4.10 of the Loan Agreement and such prepayment and any
further prepayments to be made pursuant to clause 4.10 of the Loan Agreement shall be applied:
|
|
|
3.3.1
|
entirely to the Delayed Principal Amount; and
|
|
|
3.3.2
|
in forward order of maturity with respect to the dates of the Revised Repayments.
|
For illustrative purposes:
|
|
(a)
|
any prepayment made pursuant to Clause 3.1.2 shall be applied to the repayment of the Delayed Principal Amount in an amount equal to the difference between the amounts
in the third column (
Originally Scheduled Repayments
) and the fifth column (
Revised Repayments
) of schedule 10 to the Original Loan Agreement of each Revised Repayment i.e. in the amount of USD1,103,578.12 from 6 June 2014;
|
|
|
(b)
|
a revised repayment schedule (schedule 10 to the Loan Agreement and Schedule 4 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 and the amount of each Revised Repayment to be made after such prepayment; and
|
|
|
(c)
|
a revised repayment schedule (schedule 11 to the Loan Agreement and Schedule 5 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 in so far as they relate to the calculation of the amount of the Margin to be paid after such prepayment.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
6
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to
the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or
voidable any security granted by it to the Trustee;
|
|
4.1.4
|
except for the recordation of the amendment to the Mortgage with the United States Coast Guard National Vessel Documentation Center, all authorisations, approvals,
consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents
contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower shall pay to each of the Lenders (directly or through the Agent) on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the NCLC Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Loan Agreement,
the Loan Agreement or the Agency and Trust Deed to the contrary, no Lender shall be required to share with the other Lenders, the Agent, the Hermes Agent and/or the Trustee any such handling/work fee received.
|
|
|
5.2
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of, or in connection with, the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
7
|
|
5.3
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which
at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors
c/o Apollo Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the
purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be
signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to
|
8
|
|
be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes
Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
9
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
PRIDE OF AMERICA SHIP HOLDING, LLC
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
SIGNED SEALED and DELIVERED as a DEED
|
|
)
|
|
by Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NCL CORPORATION LTD.
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
10
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as a Lender
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
KFW
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
DVB BANK SE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
HSBC BANK PLC
|
|
)
|
|
as the Agent and the Trustee
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as the Hermes Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
As
Above
|
|
|
11
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of
Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email:
exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
12
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax:
+49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Martin Hugger/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of
Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email:
josef.schmid@kfw.de/claudia.wenzel@kfw.de
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email: lam.curacao@dvbbank.com/james.neira@dvbbank.com
13
Schedule 2
Amendment of Original Loan Agreement
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Application of Proceeds Formulation”
|
|
means the following formulation for the application of any amount of the Loan to be prepaid pursuant to Clause 4.10:
(i) entirely to
the Delayed Principal Amount; and
(ii) in respect of any prepayment of the Loan to be made pursuant to clause 3.1.2 of the
Ninth Supplemental Deed, in forward order of maturity with respect to the dates of the Revised Repayments; and
(iii) in respect of any other prepayment of the Loan to be made pursuant to Clause 4.10, in forward
order of maturity with respect to the dates of the Revised Repayments, subject to the approval of all of the Lenders in respect of each such prepayment and, if the approval of all of the Lenders is not obtained, in inverse order of maturity with
respect to the dates of the Revised Repayments;
|
|
|
|
|
Clause 1.1, definition of
“Margin”
(paragraph (ii))
|
|
(ii) from 1 January 2009 until 31 December 2009 inclusive the rate of
two point two five per cent (2.25%) per annum and thereafter two point seven five per cent (2.75%) per annum on the Delayed Principal Amount;
notwithstanding the provisions of the penultimate paragraph of Clause 4.10 (as more particularly described in the final paragraph of Clause
4.10);
|
|
|
|
|
Clause 1.1, definition (new) of
“Maximum Amount of the Delayed Principal Amount”
|
|
means USD7,725,052.00;
|
|
|
|
|
Clause 1.1, definition (new) of
“New Vessels”
|
|
means the two (2) newbuild cruise vessels each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of
passenger cabins or gross or net tonnage, not on order by a member of the NCLC Group as of the Effective Date (as defined in the Ninth Supplemental Deed);
|
|
|
|
|
Clause 1.1, definition of
“Ninth Supplemental Deed”
|
|
means the ninth supplemental deed dated 2010 to this
Agreement;
|
14
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Permitted Indebtedness”
|
|
means (i) any monies borrowed or raised other than from any direct or indirect shareholder of the Borrower prior to the date on which the last of the Eighth Supplemental Deed and
the Amendment Documents have been signed by all the parties thereto and notified by the Borrower to the Agent prior to such date; (ii) the Letter of Credit Facilities; (iii) Permitted Refinancing Indebtedness and (iv) one or more financing
arrangements entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term sheet(s) related to such financing arrangement(s) having been disclosed by the Borrower to Hermes prior to their
execution by the Borrower or any other member of the NCLC Group and such financing arrangement(s) being on terms satisfactory to Hermes. The term sheet(s) will be disclosed to Hermes on the basis that the terms of such financing arrangement(s) shall
be deemed satisfactory unless Hermes notifies the Borrower to the contrary within five (5) business days (in the city in which Hermes has its office) of receipt of the term sheet(s);
|
|
|
|
|
Clause 1.1, definition (new) of
“Total Delayed Principal Amount”
|
|
means USD280,561,651.28, being the aggregate of the Maximum Amount of the Delayed Principal Amount (as defined in the facility agreement for each Cash Sweep Credit Facility) for
each Cash Sweep Credit Facility (or, if applicable, tranche thereof);
|
|
|
|
|
Clause 4.1
|
|
On giving at least thirty (30) days’ prior notice to the Agent, the Borrower may on the last day of an Interest Period prepay (without premium or penalty, subject to Clause
4.8) the whole or any relevant part of the Loan (but if in part in an amount of five million Dollars (USD5,000,000) or an integral multiple thereof). Notwithstanding anything to the contrary in this Clause 4.1, any prepayment made before an amount
equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid shall be governed by Clause 4.10.
|
|
|
|
|
Clause 4.7 (third sentence)
|
|
Subject to Clause 4.9 and Clause 4.10, each prepayment under this Agreement shall be applied in satisfaction of the Borrower’s remaining obligations under Clause 3 in inverse
chronological order and Schedule 10 and Schedule 11 shall be recalculated and agreed in accordance with Clause 4.10.
|
15
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 4.10
|
|
Notwithstanding anything to the contrary in this Agreement, other than in respect of ordinary refinancings, no voluntary prepayment of
the Loan may be made before an amount equal to the Total Delayed Principal Amount has been cancelled and/or prepaid and/or repaid unless pro rata prepayments, reductions and/or cancellations of the other Cash Sweep Credit Facilities are to be made.
The prepayment, reduction and/or cancellation to be made under each Cash Sweep Credit Facility shall be calculated based on each Cash Sweep Credit Facility’s remaining outstanding Delayed Principal Amount (as defined in this Agreement in
respect of the Loan and as defined in the relevant facility agreement in respect of each of the other Cash Sweep Credit Facilities) as of the date of the prepayment, reduction and/or cancellation, save for any prepayment to be made pursuant to the
Ninth Supplemental Deed. Each such outstanding Delayed Principal Amount or Maximum Amount of the Delayed Principal Amount (as the case may be), to the extent it is not already denominated in Dollars, shall be converted into Dollars on the date
falling ten (10) Business Days prior to the relevant prepayment, reduction and/or cancellation date at the rate which appears on the Reuters Page ECB37 at 1.30 p.m. London time on that date, for the purposes of such calculation. Subject to
Clause 4.8 and the rest of this Clause 4.10, with respect to the Loan on the relevant date of measurement, any prepayment made before an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid
and/or repaid shall be applied in accordance with the Application of Proceeds Formulation. As at the Effective Date (as defined in the Ninth Supplemental Deed), Schedule 10 contains a repayment schedule calculated following the prepayment of an
amount of the Loan as more particularly described in clause 3.1.2 of the Ninth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 10 shall be recalculated using the
Application of Proceeds Formulation or in accordance with Clause 4.7 (as the case may be), shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part
of this Agreement.
Notwithstanding anything to the contrary, paragraph
(ii) of the definition of Margin shall continue to apply as if the amount of each Revised Repayment or Originally Scheduled Repayment prepaid as described in the last three (3) sentences of the previous paragraph of this Clause 4.10 or in
Clause 4.1 had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised Repayment or Originally Scheduled Repayment prior to any voluntary prepayment made under this Clause 4.10
pursuant to the Ninth Supplemental Deed. As at the Effective Date (as defined in the Ninth Supplemental Deed), Schedule 11 contains a repayment schedule calculated following the prepayment of an amount of the Loan as more particularly described in
clause 3.1.2 of the Ninth Supplemental Deed, on the basis that the amount of each such Revised Repayment prepaid had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised
Repayment prior to any voluntary prepayment made under this Clause 4.10 pursuant to the Ninth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 11 shall be recalculated on
the basis described in this paragraph of this Clause 4.10, shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part of this
Agreement.
|
16
Schedule 3
Amendment of Original Guarantee
|
|
|
|
|
Clause
|
|
Amendment
|
|
Clause 10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Loan Agreement or
this Deed.
|
|
|
|
|
Clause 10.10 (new)
|
|
The Guarantor shall not (and will procure that no other company in the NCLC Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is
available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing arrangements.
|
|
|
|
|
Clause 11.3
|
|
The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other
distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the NCLC Group, (ii) the Guarantor may pay dividends in respect of tax liability to each relevant
jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the NCLC Group being treated as a pass-through entity
or attributable to any member of the NCLC Group, and (iii) after the later of (x) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been
prepaid and/or repaid, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such
payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend and (II) after giving effect to such dividend
the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 of the Guarantee is less than 5.50:1.00. The Agent shall
use the Application of Proceeds Formulation to determine whether an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid.
The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions
will be received promptly by the Guarantor directly or indirectly from the Borrower’s member(s) or shareholder(s) (if such member or shareholder is not the Guarantor) by way of dividend.
|
17
Schedule 4
Repayment Schedule calculated using the Application of Proceeds Formulation
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Existing Schedule
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Revised Schedule (after giving effect to USD100,000,000 prepayment)
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Ordinary
Principal
Amount
USD
|
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Originally
Scheduled
Repayments
USD
|
|
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Delayed
Principal
Amount
USD
|
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|
Revised
Repayments
USD
|
|
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Revised
Principal
Amount
USD
|
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|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
New
Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
6-Jun-10
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|
27,037,676.85
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|
|
|
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5,793,789.00
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|
|
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|
32,831,465.85
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|
27,037,676.85
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—
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5,793,789.00
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|
|
|
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|
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32,831,465.85
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Amendment Prepayment
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|
27,037,676.85
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|
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5,793,789.00
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|
|
|
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|
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32,831,465.85
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|
|
|
27,037,676.85
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|
|
|
|
|
|
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3,040,364.94
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|
|
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2,753,424.06
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|
|
|
30,078,041.79
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6-Dec-10
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25,106,413.85
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1,931,263.00
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|
7,725,052.00
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|
—
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32,831,465.85
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25,106,413.85
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|
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|
1,931,263.00
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4,971,627.94
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—
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|
|
30,078,041.79
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6-Jun-11
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|
23,175,150.85
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|
|
|
1,931,263.00
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|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
30,900,202.85
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23,175,150.85
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|
|
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1,931,263.00
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|
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4,971,627.94
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1,931,263.00
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|
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28,146,778.79
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6-Dec-11
|
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|
21,243,887.85
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|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
28,968,939.85
|
|
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|
21,243,887.85
|
|
|
|
1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
26,215,515.79
|
|
|
6-Jun-12
|
|
|
19,312,624.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
27,037,676.85
|
|
|
|
19,312,624.85
|
|
|
|
1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
24,284,252.79
|
|
|
6-Dec-12
|
|
|
17,381,361.85
|
|
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|
1,931,263.00
|
|
|
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7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
25,106,413.85
|
|
|
|
17,381,361.85
|
|
|
|
1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
22,352,989.79
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|
6-Jun-13
|
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15,450,098.85
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1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
23,175,150.85
|
|
|
|
15,450,098.85
|
|
|
|
1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
20,421,726.79
|
|
|
6-Dec-13
|
|
|
13,518,835.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
21,243,887.85
|
|
|
|
13,518,835.85
|
|
|
|
1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
18,490,463.79
|
|
|
6-Jun-14
|
|
|
11,587,572.85
|
|
|
|
1,931,263.00
|
|
|
|
6,621,473.88
|
|
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|
3,034,841.12
|
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18,209,046.73
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11,587,572.85
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|
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1,931,263.00
|
|
|
|
4,971,627.94
|
|
|
|
1,931,263.00
|
|
|
|
16,559,200.79
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8-Dec-14
|
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|
9,656,309.85
|
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1,931,263.00
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5,517,895.76
|
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3,034,841.12
|
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15,174,205.61
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9,656,309.85
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|
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1,931,263.00
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4,971,627.94
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1,931,263.00
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14,627,937.79
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6-Jun-15
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7,725,046.85
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1,931,263.00
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4,414,317.64
|
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|
3,034,841.12
|
|
|
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12,139,364.49
|
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|
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7,725,046.85
|
|
|
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1,931,263.00
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4,414,317.64
|
|
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2,488,573.30
|
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|
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12,139,364.49
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|
7-Dec-15
|
|
|
5,793,783.85
|
|
|
|
1,931,263.00
|
|
|
|
3,310,739.52
|
|
|
|
3,034,841.12
|
|
|
|
9,104,523.37
|
|
|
|
5,793,783.85
|
|
|
|
1,931,263.00
|
|
|
|
3,310,739.52
|
|
|
|
3,034,841.12
|
|
|
|
9,104,523.37
|
|
|
6-Jun-16
|
|
|
3,862,520.85
|
|
|
|
1,931,263.00
|
|
|
|
2,207,161.40
|
|
|
|
3,034,841.12
|
|
|
|
6,069,682.25
|
|
|
|
3,862,520.85
|
|
|
|
1,931,263.00
|
|
|
|
2,207,161.40
|
|
|
|
3,034,841.12
|
|
|
|
6,069,682.25
|
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|
6-Dec-16
|
|
|
1,931,257.85
|
|
|
|
1,931,263.00
|
|
|
|
1,103,583.28
|
|
|
|
3,034,841.12
|
|
|
|
3,034,841.13
|
|
|
|
1,931,257.85
|
|
|
|
1,931,263.00
|
|
|
|
1,103,583.28
|
|
|
|
3,034,841.12
|
|
|
|
3,034,841.13
|
|
|
6-Jun-17
|
|
|
—
|
|
|
|
1,931,257.85
|
|
|
|
—
|
|
|
|
3,034,841.13
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,931,257.85
|
|
|
|
—
|
|
|
|
3,034,841.13
|
|
|
|
—
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|
18
Schedule 5
Repayment Schedule for the purpose of calculating the amount of the Margin payable
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
New Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
6-Jun-10
|
|
|
27,037,676.85
|
|
|
|
—
|
|
|
|
5,793,789.00
|
|
|
|
—
|
|
|
|
32,831,465.85
|
|
|
|
27,037,676.85
|
|
|
|
—
|
|
|
|
5,793,789.00
|
|
|
|
—
|
|
|
|
32,831,465.85
|
|
|
Amendment Prepayment
|
|
|
27,037,676.85
|
|
|
|
—
|
|
|
|
5,793,789.00
|
|
|
|
—
|
|
|
|
32,831,465.85
|
|
|
|
25,285,497.48
|
|
|
|
|
|
|
|
4,792,544.31
|
|
|
|
2,753,424.06
|
|
|
|
30,078,041.79
|
|
|
6-Dec-10
|
|
|
25,106,413.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
—
|
|
|
|
32,831,465.85
|
|
|
|
23,354,234.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
—
|
|
|
|
30,078,041.79
|
|
|
6-Jun-11
|
|
|
23,175,150.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
30,900,202.85
|
|
|
|
21,422,971.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
28,146,778.79
|
|
|
6-Dec-11
|
|
|
21,243,887.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
28,968,939.85
|
|
|
|
19,491,708.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
26,215,515.79
|
|
|
6-Jun-12
|
|
|
19,312,624.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
27,037,676.85
|
|
|
|
17,560,445.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
24,284,252.79
|
|
|
6-Dec-12
|
|
|
17,381,361.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
25,106,413.85
|
|
|
|
15,629,182.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
22,352,989.79
|
|
|
6-Jun-13
|
|
|
15,450,098.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
23,175,150.85
|
|
|
|
13,697,919.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
20,421,726.79
|
|
|
6-Dec-13
|
|
|
13,518,835.85
|
|
|
|
1,931,263.00
|
|
|
|
7,725,052.00
|
|
|
|
1,931,263.00
|
|
|
|
21,243,887.85
|
|
|
|
11,766,656.48
|
|
|
|
1,931,263.00
|
|
|
|
6,723,807.31
|
|
|
|
1,931,263.00
|
|
|
|
18,490,463.79
|
|
|
6-Jun-14
|
|
|
11,587,572.85
|
|
|
|
1,931,263.00
|
|
|
|
6,621,473.88
|
|
|
|
3,034,841.12
|
|
|
|
18,209,046.73
|
|
|
|
10,537,670.64
|
|
|
|
1,931,263.00
|
|
|
|
6,021,530.16
|
|
|
|
1,931,263.00
|
|
|
|
16,559,200.79
|
|
|
8-Dec-14
|
|
|
9,656,309.85
|
|
|
|
1,931,263.00
|
|
|
|
5,517,895.76
|
|
|
|
3,034,841.12
|
|
|
|
15,174,205.61
|
|
|
|
9,308,684.79
|
|
|
|
1,931,263.00
|
|
|
|
5,319,253.00
|
|
|
|
1,931,263.00
|
|
|
|
14,627,937.79
|
|
|
6-Jun-15
|
|
|
7,725,046.85
|
|
|
|
1,931,263.00
|
|
|
|
4,414,317.64
|
|
|
|
3,034,841.12
|
|
|
|
12,139,364.49
|
|
|
|
7,725,046.85
|
|
|
|
1,931,263.00
|
|
|
|
4,414,317.64
|
|
|
|
2,488,573.30
|
|
|
|
12,139,364.49
|
|
|
7-Dec-15
|
|
|
5,793,783.85
|
|
|
|
1,931,263.00
|
|
|
|
3,310,739.52
|
|
|
|
3,034,841.12
|
|
|
|
9,104,523.37
|
|
|
|
5,793,783.85
|
|
|
|
1,931,263.00
|
|
|
|
3,310,739.52
|
|
|
|
3,034,841.12
|
|
|
|
9,104,523.37
|
|
|
6-Jun-16
|
|
|
3,862,520.85
|
|
|
|
1,931,263.00
|
|
|
|
2,207,161.40
|
|
|
|
3,034,841.12
|
|
|
|
6,069,682.25
|
|
|
|
3,862,520.85
|
|
|
|
1,931,263.00
|
|
|
|
2,207,161.40
|
|
|
|
3,034,841.12
|
|
|
|
6,069,682.25
|
|
|
6-Dec-16
|
|
|
1,931,257.85
|
|
|
|
1,931,263.00
|
|
|
|
1,103,583.28
|
|
|
|
3,034,841.12
|
|
|
|
3,034,841.13
|
|
|
|
1,931,257.85
|
|
|
|
1,931,263.00
|
|
|
|
1,103,583.28
|
|
|
|
3,034,841.12
|
|
|
|
3,034,841.13
|
|
|
6-Jun-17
|
|
|
—
|
|
|
|
1,931,257.85
|
|
|
|
—
|
|
|
|
3,034,841.13
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,931,257.85
|
|
|
|
—
|
|
|
|
3,034,841.13
|
|
|
|
—
|
|
19
Exhibit 10.7
DATED 18 NOVEMBER 2010
PRIDE OF AMERICA SHIP HOLDING, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
ELEVENTH SUPPLEMENTAL DEED IN RELATION TO
(AMONG OTHER THINGS) SECURED LOAN AGREEMENT
dated 4 April 2003 for
the equivalent amount in
United States Dollars and/or Euro of up to €258,000,000
pre- and post redelivery finance for one 1,075 cabin luxury cruise vessel
identified with no 7671 and working title “Project America”
at the yard of Lloyd Werft Bremerhaven GmbH
(now named “PRIDE OF AMERICA”)
STEPHENSON
HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref: 1253/41-25887/42-02591/43-03502/44-01536/44-02443/45-01870/46-01273/
47-02889/49-00641
CONTENTS
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Page
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1
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Definitions and Construction
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2
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Second Mortgages and Second Assignments in respect of the
Relevant Hermes Vessels
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3
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3
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Conditions Precedent
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6
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4
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Representations and Warranties
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8
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5
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Expenses
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9
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6
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Further Assurance
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9
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7
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Counterparts
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9
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8
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Notices
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9
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9
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Governing Law
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10
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10
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Jurisdiction
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10
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Schedule 1
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The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
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14
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ELEVENTH SUPPLEMENTAL DEED
DATED 18 November 2010
BETWEEN:
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(1)
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PRIDE OF AMERICA SHIP HOLDING,
LLC of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the
“Borrower”
);
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(2)
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NCL CORPORATION LTD.
of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the
“Guarantor”
);
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(3)
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THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
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(4)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
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(5)
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COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
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(6)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
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WHEREAS:
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(A)
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By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental
agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the
“Third Supplement”
), a fourth supplemental agreement thereto dated 3 August 2005, a fifth supplemental agreement
thereto dated as of 30 September 2005, a sixth supplemental agreement thereto dated 22 December 2005, a seventh supplemental agreement thereto dated 13 November 2006, an eighth supplemental agreement thereto dated 21 December
2007, a ninth supplemental agreement thereto dated 2 April 2009 and a tenth supplemental agreement thereto dated 22 July 2010 (the
“Tenth Supplement”
) entered into between the Borrower or its predecessor Ship Holding LLC
(
“SHLLC”
) as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of the equivalent in Dollars and/or Euro of two hundred and fifty eight million euro (€258,000,000) (the
“Loan”
) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such terms are defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the
Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended, supplemented and/or restated from time to time (the
“Original Guarantee”
), a first preferred
mortgage dated 1 June 2005 and effective 7 June 2005 as amended and/or supplemented from time to time over the Borrower’s vessel “PRIDE OF AMERICA” (the
“Mortgage”
) and second priority mortgages each dated
2 April 2009 over the Relevant Hermes Vessels (as defined below).
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(B)
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The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to (i) the granting by
Norwegian Jewel Limited (
“NJL”
) and Pride of Hawaii, LLC (
“PoH”
) of mortgages and deeds of covenants over
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m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” (the
“Relevant Hermes Vessels”
) respectively that are junior to all mortgages and deeds of covenants
existing on the date hereof in respect of such Relevant Hermes Vessel, assignments of the earnings (including intercompany charters) and insurances of the Relevant Hermes Vessels that are junior to all earnings and insurance assignments,
respectively, existing on the date hereof in respect of such Relevant Hermes Vessel and a subordination and assignment that is junior to all Sub-Agent’s subordinations and assignments existing on the date hereof in respect of such Relevant
Hermes Vessel to be executed by the Sub-Agent (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE”, each in favour of a syndicate of banks (the
“New Term Loans Lenders”
), the facility agent for which is KfW
IPEX-Bank GmbH, or a collateral agent therefor to secure the repayment of loans to be borrowed by NJL and PoH from the New Term Loans Lenders in the maximum aggregate amount of the lesser of (x) the sum of (I) 10% of the initial
construction prices of the New Vessels and (II) 100% of the total aggregate amounts payable by NJL and PoH to the Hermes agent in relation to the New Term Loans in respect of the Hermes cover for such facilities (the
“New Hermes
Fees”
), (y) the sum of (I) €123,000,000 and (II) €3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to
finance in part the acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees (the
“Fourth Priority Security Documents”
), which loans will constitute Permitted Indebtedness from the
Effective Date (as defined in the Tenth Supplement) (the
“New Term Loans”
) and (ii) the prepayment of the relevant part of the New Term Loans in full if (w) the construction contract in respect of a New Vessel is
terminated prior to the delivery date of such New Vessel, (x) the delivery date of the relevant New Vessel does not occur on or before (I) in the case of the part of the New Term Loans related to the first New Vessel, 23 December 2013
and (II) in the case of the part of the New Term Loans related to the second New Vessel, 8 December 2014, (y) either new export credit facility to be entered into by the purchasers of the New Vessels shall terminate or (z) certain
insolvency events (as specified in the loan documentation in respect of the New Term Loans) occur with respect to the yard that is building the New Vessels (a
“Mandatory Prepayment”
).
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(C)
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The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this eleventh supplement (this
“Deed”
) which shall be executed as a deed.
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NOW THIS DEED WITNESSES
as follows:
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1
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Definitions and Construction
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1.1
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In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
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“Effective Date”
means the date on which the conditions precedent
set out in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Fourth Priority Security”
means the security interests to be granted pursuant to the Fourth Mortgages, the Fourth
Assignments and all other security documents to be delivered in connection with the New Term Loans;
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“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as amended by this Deed; and
“New Process Agent”
means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
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1.2
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The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Second Mortgages and Second Assignments in
respect of the Relevant Hermes Vessels
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2.1
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Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date the Original Loan Agreement shall be read and construed as
if:
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2.1.1
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the following definitions had been inserted in the appropriate place, alphabetically, in clause 1.1 of the Original Loan Agreement:
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“
“Eleventh Supplemental Deed”
means the eleventh supplemental deed
dated November 2010 to this Agreement;
“Fourth Assignments”
means the two (2) valid and effective legal assignments of the earnings and
insurances of m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” (together with the notices thereof) one (1) to be executed by each of the owners of the relevant Hermes Vessels in respect of its Hermes Vessel and the one
(1) valid and effective subordination and assignment to be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE” in each case in favour of the New Term Loans Lenders or the collateral agent and/or trustee
therefor and junior to all subordinations and/or assignments existing as of the date of the Eleventh Supplemental Deed in respect of such Hermes Vessel;
“Fourth Mortgages”
means the two (2) statutory Bahamian ship mortgages and deeds of covenants collateral thereto one (1) to be granted by respectively each of
the owners of m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” over its Hermes Vessel in favour of the New Term Loans Lenders or the collateral agent and/or trustee therefor and junior to all ship mortgages and deeds of covenants
existing as of the date of the Eleventh Supplemental Deed in respect of such Hermes Vessel;
“Fourth
Priority Security Co-ordination Deeds”
means the deeds to be made between (among others) HSBC Bank plc (as trustee for the relevant Guaranteed Loan Lenders, as first mortgagees), the Restructuring Trustee (as trustee for the relevant
Guaranteed Loan Lenders, as second mortgagees), the Restructuring Trustee (as trustee for the Non-Guaranteed Loan Lenders, as third mortgagees), the facility or collateral agent (as the case may be) for the New Term Loans Lenders and the owners of
m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” in relation to the
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Fourth Mortgages and the Fourth Assignments such co-ordination deeds to be in the form and on the terms and conditions agreed between the Lenders and the other parties to the co-ordination deed
on the date of the Eleventh Supplemental Deed, such terms and conditions to include, without limitation, the conditional ability of Norwegian Jewel Limited and Pride of Hawaii, LLC to, upon the cancellation of any construction contract for the New
Vessels, prepay the relevant part of the New Term Loans in full;
“New Hermes Fees”
means the total aggregate amounts payable by Norwegian Jewel Limited and Pride of Hawaii, LLC to the Hermes agent in relation to the New Term Loans in respect of the Hermes cover for such facilities;
“New Term Loans”
means the loans to be borrowed by Norwegian Jewel Limited from the New Term Loans
Lenders and which, when aggregated with the loans to be similarly borrowed by Pride of Hawaii, LLC, will amount to the lesser of (x) the sum of (i) 10% of the initial construction prices of the New Vessels and (ii) 100% of the New
Hermes Fees, (y) the sum of (i) €123,000,000 and (ii) €3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to
finance in part the acquisition by two (2) wholly owned subsidiaries of the Guarantor of the New Vessels and related fees;
“New Term Loans Lenders”
means the lenders of the New Term Loans;”;
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2.1.2
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the following paragraphs had been inserted in the appropriate place, alphabetically, in paragraph (v)(y) of the definition of
“Permitted Liens”
in
clause 1.1 of the Original Loan Agreement:
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“
(i) the Fourth Mortgages and (j) the Fourth
Assignments
”; and
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2.1.3
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the following words had been inserted in the definition of
“Security Documents”
after the words “
the Third Priority Security Co-ordination
Deed
” in clause 1.1 of the Original Loan Agreement:
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“
, the Fourth Priority Security
Co-ordination Deeds
”.
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2.2
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Subject to Clause 3.1 and pursuant to Clause 2.1, immediately upon and with effect from the Effective Date:
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2.2.1
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notwithstanding the provisions of the relevant Security Documents, the Lenders, the Agent, the Hermes Agent and the Trustee agree and consent to NJL, PoH and the
Sub-Agent granting the Fourth Priority Security and entering into the Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth Priority Security Documents;
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2.2.2
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the Lenders, the Agent and the Hermes Agent instruct the Trustee to instruct the Restructuring Trustee, as Restructuring Trustee and as Second
Mortgagee under the Second Mortgages, pursuant to the relevant Second Priority Security Co-ordination Deeds to allow NJL, PoH and the Sub-Agent to grant the Fourth Priority Security and enter into the Fourth Priority
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Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth Priority Security Documents;
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2.2.3
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the Lenders, the Agent and the Hermes Agent instruct the Trustee (in relation to the second priority mortgages over the Relevant Hermes Vessels) to procure the
Restructuring Trustee to enter into intercreditor deeds with the relevant parties in relation to the Fourth Priority Security Documents, in form approved by the Agent and the Hermes Agent, it being understood that a Mandatory Prepayment shall be
permitted provided that, at the relevant time, the Lenders and the Guaranteed Loan Lenders of the USD334,050,000 facility made to NJL pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time to time) and the
EUR308,130,000 facility made to PoH pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time to time) receive evidence satisfactory to them from the Guarantor that NJL and PoH (after giving effect to any
contributions from the Guarantor) will be able to meet their obligations for the next twelve (12) months under the respective facility agreements if the Mandatory Prepayment is made; and
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2.2.4
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any further consent required under the Security Documents to permit NJL and PoH to borrow the New Term Loans and NJL, PoH and the Sub-Agent to grant the Fourth Priority
Security and enter into the Fourth Priority Security Documents is hereby given by the Lenders, the Agent, the Hermes Agent and the Trustee.
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2.3
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Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that immediately upon and with effect from the
Effective Date:
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2.3.1
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all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
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2.3.2
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the Security Documents (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) to which it is a party shall apply to,
and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
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2.3.3
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its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged,
impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement;
and
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2.3.4
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its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain
in
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full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed.
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2.4
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Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
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3.1
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Subject to Clause 3.2, the instructions and consents provided for in Clause 2 are conditional upon and shall not be effective unless and until the Agent has received
the following in form and substance satisfactory to it:
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3.1.1
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on the date of this Deed:
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(a)
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one (1) counterpart of this Deed duly executed by the parties hereto;
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(b)
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a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto; and
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(c)
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the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
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(i)
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Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
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(ii)
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a notarially attested secretary’s certificate of each of the Relevant Parties:
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(1)
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attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
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(2)
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giving the names of its present officers and directors;
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(3)
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setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
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(4)
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giving the legal owner of its shares and the number of such shares held;
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(5)
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attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
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(6)
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containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
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or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or
shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
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(iii)
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the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
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3.1.2
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evidence that the Effective Date (as defined in the Tenth Supplement) has occurred;
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3.1.3
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a tenth amendment to the Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center;
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3.1.4
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a Certified Copy of a confirmation in respect of each of the relevant Hermes Vessel Owner Second Guarantees duly executed by NJL and PoH;
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3.1.5
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a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments contemplated by this Deed; and
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3.1.6
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agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
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PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date other than that Event of Default waived by the Agent pursuant to the letters dated 9 March 2004 and
20 April 2004 from the Agent to SHLLC.
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3.2
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If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed
decides) to
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give the instructions and consents provided for in Clause 2 without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver
the remaining documents or evidence to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the giving of the instructions and consents provided for in Clause 2 as aforesaid shall not
be construed as a waiver of the Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to give the instructions and consents
provided for in Clause 2 in the absence of such documents or evidence.
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4
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Representations and Warranties
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4.1
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Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
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4.1.1
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it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
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4.1.2
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this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
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4.1.3
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its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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its constitutional documents; or
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(c)
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any agreement or document to which it is a party or which is binding upon it or any of its assets,
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nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee or the Restructuring Trustee;
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4.1.4
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except for the recordation of the amendment to the Mortgage with the United States Coast Guard National Vessel Documentation Center, all authorisations, approvals,
consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents
contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect;
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4.1.5
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all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the
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other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would
render any such information misleading; and
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4.1.6
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it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
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5.1
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The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of, or in connection with, the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
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5.2
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The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
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Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
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8.1
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Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed
shall (unless the Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida
33126, United States
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of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West
57th Street, 43rd Floor, New York, NY 10019, United States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed
shall (unless the Agent, the Hermes Agent or the Trustee has by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office,
the details of which are set out in Schedule 1.
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8.2
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Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and shall be
deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the person or
persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and shall be
expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
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8.3
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The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
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This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
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10.1
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The courts of England have exclusive jurisdiction to settle any dispute:
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10.1.1
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arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
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10.1.2
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relating to any non-contractual obligations arising from or in connection with this Deed,
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(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the
10
extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions.
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10.2
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None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
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10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
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10.4
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No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
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10.5
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Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
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10.6
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A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
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10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
11
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SIGNED
and
DELIVERED
as a
DEED
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)
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by Amelia Reffold
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)
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duly authorised attorney-in-fact
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)
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/s/ Amelia Reffold
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for and on behalf of
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)
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PRIDE OF AMERICA SHIP HOLDING, LLC
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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One St. Paul’s Churchyard
London
EC4M 8SH
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EXECUTED
as a
DEED
and
DELIVERED
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)
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by
NCL CORPORATION LTD.
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)
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acting by Amelia Reffold
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)
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/s/ Amelia Reffold
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expressly authorised in accordance with
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)
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the laws of Bermuda
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)
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by virtue of a power of attorney granted
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)
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by
NCL CORPORATION LTD.
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)
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on 17 November 2010
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)
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such execution being witnessed by:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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One St. Paul’s Churchyard
London
EC4M 8SH
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SIGNED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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COMMERZBANK AKTIENGESELLSCHAFT
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)
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as a Lender
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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One St. Paul’s Churchyard
London
EC4M 8SH
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SIGNED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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KFW
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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One St. Paul’s Churchyard
London
EC4M 8SH
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12
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SIGNED
and
DELIVERED
as a
DEED
|
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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HSBC BANK PLC
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)
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as a Lender
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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Stephenson Harwood
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One St. Paul’s Churchyard
London
EC4M 8SH
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SIGNED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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HSBC BANK PLC
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)
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as the Agent and the Trustee
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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Stephenson Harwood
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One St. Paul’s Churchyard
London
EC4M 8SH
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SIGNED
and
DELIVERED
as a
DEED
|
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
|
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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COMMERZBANK AKTIENGESELLSCHAFT
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)
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as the Hermes Agent
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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Stephenson Harwood
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One St. Paul’s Churchyard
London
EC4M 8SH
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13
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr
Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
14
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40
3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
15
DATED 18 NOVEMBER 2010
PRIDE OF AMERICA SHIP HOLDING, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
TENTH
SUPPLEMENTAL DEED IN RELATION TO
(AMONG OTHER THINGS) SECURED LOAN AGREEMENT
dated 4 April 2003 for the equivalent amount in
United States Dollars of up to €40,000,000
pre- and post redelivery
finance for one 1,075 cabin luxury cruise vessel
identified with no 7671 and working title “Project America”
at the yard of Lloyd Werft Bremerhaven GmbH
(now named “PRIDE OF AMERICA”)
STEPHENSON
HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref: 1253/41-25887/42-02591/43-03502/44-01536/44-02443/45-01870/46-01273/
47-02889/49-00641
CONTENTS
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Page
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|
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1
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Definitions and Construction
|
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2
|
|
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2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Second Mortgages and Second Assignments in respect of the
Relevant Hermes Vessels
|
|
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3
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|
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3
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Conditions Precedent
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|
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6
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4
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Representations and Warranties
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8
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5
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Expenses
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9
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6
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Further Assurance
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9
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7
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Counterparts
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9
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8
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Notices
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9
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9
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Governing Law
|
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10
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10
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Jurisdiction
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10
|
|
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Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
14
|
|
TENTH SUPPLEMENTAL DEED
DATED 18 November 2010
BETWEEN:
|
(1)
|
PRIDE OF AMERICA SHIP HOLDING,
LLC of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(4)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS:
|
(A)
|
By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental
agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the
“Third Supplement”
), a fourth supplemental agreement thereto dated as of 30 September 2005, a fifth supplemental
agreement thereto dated 10 March 2006, a sixth supplemental agreement dated 13 November 2006, a seventh supplemental deed thereto dated 21 December 2007, an eighth supplemental deed thereto dated 2 April 2009 and a ninth
supplemental deed thereto dated 22 July 2010 (the
“Ninth Supplement”
) entered into between the Borrower or its predecessor Ship Holding LLC (
“SHLLC”
) as borrower, the Lenders as lenders, the Agent as agent for
(among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in
the maximum amount of the equivalent in Dollars of forty million euro (€40,000,000) (the
“Loan”
) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such terms are defined in the Original
Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended, supplemented
and/or restated from time to time (the
“Original Guarantee”
), a first preferred mortgage dated 1 June 2005 and effective 7 June 2005 as amended and/or supplemented from time to time over the Borrower’s vessel
“PRIDE OF AMERICA” (the
“Mortgage”
) and second priority mortgages each dated 2 April 2009 over the Relevant Hermes Vessels (as defined below).
|
|
(B)
|
The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to (i) the granting by
Norwegian Jewel Limited (
“NJL”
) and Pride of Hawaii, LLC (
“PoH”
) of mortgages and deeds of covenants over m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” (the
“Relevant Hermes
|
|
|
Vessels”
) respectively that are junior to all mortgages and deeds of covenants existing on the date hereof in respect of such Relevant Hermes Vessel, assignments of the earnings
(including intercompany charters) and insurances of the Relevant Hermes Vessels that are junior to all earnings and insurance assignments, respectively, existing on the date hereof in respect of such Relevant Hermes Vessel and a subordination and
assignment that is junior to all Sub-Agent’s subordinations and assignments existing on the date hereof in respect of such Relevant Hermes Vessel to be executed by the Sub-Agent (as bareboat charterer) in respect of m.v. “NORWEGIAN
JADE”, each in favour of a syndicate of banks (the
“New Term Loans Lenders”
), the facility agent for which is KfW IPEX-Bank GmbH, or a collateral agent therefor to secure the repayment of loans to be borrowed by NJL and PoH
from the New Term Loans Lenders in the maximum aggregate amount of the lesser of (x) the sum of (I) 10% of the initial construction prices of the New Vessels and (II) 100% of the total aggregate amounts payable by NJL and PoH to the Hermes
agent in relation to the New Term Loans in respect of the Hermes cover for such facilities (the
“New Hermes Fees”
), (y) the sum of (I) €123,000,000 and (II) €3,075,000 and (z) USD224,770,000 (or such higher
Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to finance in part the acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees (the
“Fourth Priority Security Documents”
), which loans will constitute Permitted Indebtedness from the Effective Date (as defined in the Ninth Supplement) (the
“New Term Loans”
) and (ii) the prepayment of the
relevant part of the New Term Loans in full if (w) the construction contract in respect of a New Vessel is terminated prior to the delivery date of such New Vessel, (x) the delivery date of the relevant New Vessel does not occur on or
before (I) in the case of the part of the New Term Loans related to the first New Vessel, 23 December 2013 and (II) in the case of the part of the New Term Loans related to the second New Vessel, 8 December 2014, (y) either new
export credit facility to be entered into by the purchasers of the New Vessels shall terminate or (z) certain insolvency events (as specified in the loan documentation in respect of the New Term Loans) occur with respect to the yard that is
building the New Vessels (a
“Mandatory Prepayment”
).
|
|
(C)
|
The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this tenth supplement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“Effective Date”
means the date on which the conditions precedent
set out in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Fourth Priority Security”
means the security interests to be granted pursuant to the Fourth Mortgages, the Fourth
Assignments and all other security documents to be delivered in connection with the New Term Loans;
2
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as amended by this Deed; and
“New Process Agent”
means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Second Mortgages and Second Assignments in
respect of the Relevant Hermes Vessels
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date the Original Loan Agreement shall be read and construed as
if:
|
|
|
2.1.1
|
the following definitions had been inserted in the appropriate place, alphabetically, in clause 1.1 of the Original Loan Agreement:
|
“
“Fourth Assignments”
means the two (2) valid and effective legal assignments of the
earnings and insurances of m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” (together with the notices thereof) one (1) to be executed by each of the owners of the relevant Hermes Vessels in respect of its Hermes Vessel and the
one (1) valid and effective subordination and assignment to be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE” in each case in favour of the New Term Loans Lenders or the collateral agent and/or
trustee therefor and junior to all subordinations and/or assignments existing as of the date of the Tenth Supplemental Deed in respect of such Hermes Vessel;
“Fourth Mortgages”
means the two (2) statutory Bahamian ship mortgages and deeds of covenants collateral thereto one (1) to be granted by respectively each of
the owners of m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” over its Hermes Vessel in favour of the New Term Loans Lenders or the collateral agent and/or trustee therefor and junior to all ship mortgages and deeds of covenants
existing as of the date of the Tenth Supplemental Deed in respect of such Hermes Vessel;
“Fourth
Priority Security Co-ordination Deeds”
means the deeds to be made between (among others) HSBC Bank plc (as trustee for the relevant Guaranteed Loan Lenders, as first mortgagees), the Restructuring Trustee (as trustee for the relevant
Guaranteed Loan Lenders, as second mortgagees), the Restructuring Trustee (as trustee for the Non-Guaranteed Loan Lenders, as third mortgagees), the facility or collateral agent (as the case may be) for the New Term Loans Lenders and the owners of
m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” in relation to the Fourth Mortgages and the Fourth Assignments such co-ordination deeds to be in the form and on the terms and conditions agreed between the Lenders and the other
parties to the co-ordination deed on the date of the Tenth Supplemental Deed, such terms and conditions to include, without
3
limitation, the conditional ability of Norwegian Jewel Limited and Pride of Hawaii, LLC to, upon the cancellation of any construction contract for the New Vessels, prepay the relevant part of the
New Term Loans in full;
“New Hermes Fees”
means the total aggregate amounts payable by
Norwegian Jewel Limited and Pride of Hawaii, LLC to the Hermes agent in relation to the New Term Loans in respect of the Hermes cover for such facilities;
“New Term Loans”
means the loans to be borrowed by Norwegian Jewel Limited from the New Term Loans Lenders and which, when aggregated with the loans to be similarly
borrowed by Pride of Hawaii, LLC, will amount to the lesser of (x) the sum of (i) 10% of the initial construction prices of the New Vessels and (ii) 100% of the New Hermes Fees, (y) the sum of (i) €123,000,000 and
(ii) €3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to finance in part the acquisition by two (2) wholly owned
subsidiaries of the Guarantor of the New Vessels and related fees;
“New Term Loans
Lenders”
means the lenders of the New Term Loans;
“Tenth Supplemental
Deed”
means the tenth supplemental deed dated November 2010 to this Agreement;”;
|
|
2.1.2
|
the following paragraphs had been inserted in the appropriate place, alphabetically, in paragraph (v)(y) of the definition of
“Permitted Liens”
in
clause 1.1 of the Original Loan Agreement:
|
“(i) the Fourth Mortgages and (j) the Fourth
Assignments”; and
|
|
2.1.3
|
the following words had been inserted in the definition of
“Security Documents”
after the words “
the Third Priority Security Co-ordination
Deed
” in clause 1.1 of the Original Loan Agreement:
|
“, the Fourth Priority Security
Co-ordination Deeds”.
|
|
2.2
|
Subject to Clause 3.1 and pursuant to Clause 2.1, immediately upon and with effect from the Effective Date:
|
|
|
2.2.1
|
notwithstanding the provisions of the relevant Security Documents, the Lenders, the Agent, the Hermes Agent and the Trustee agree and consent to NJL, PoH and the
Sub-Agent granting the Fourth Priority Security and entering into the Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth Priority Security Documents;
|
|
|
2.2.2
|
the Lenders, the Agent and the Hermes Agent instruct the Trustee to instruct the Restructuring Trustee, as Restructuring Trustee and as Second
Mortgagee under the Second Mortgages, pursuant to the relevant Second Priority Security Co-ordination Deeds to allow NJL, PoH and the Sub-Agent to grant the Fourth Priority Security and enter into the Fourth Priority Security Documents in form
attached to the relevant intercreditor deed with
|
4
|
|
the relevant parties in relation to the relevant Fourth Priority Security Documents;
|
|
|
2.2.3
|
the Lenders, the Agent and the Hermes Agent instruct the Trustee (in relation to the second priority mortgages over the Relevant Hermes Vessels) to procure the
Restructuring Trustee to enter into intercreditor deeds with the relevant parties in relation to the Fourth Priority Security Documents, in form approved by the Agent and the Hermes Agent, it being understood that a Mandatory Prepayment shall be
permitted provided that, at the relevant time, the Lenders and the Guaranteed Loan Lenders of the USD334,050,000 facility made to NJL pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time to time) and the
EUR308,130,000 facility made to PoH pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time to time) receive evidence satisfactory to them from the Guarantor that NJL and PoH (after giving effect to any
contributions from the Guarantor) will be able to meet their obligations for the next twelve (12) months under the respective facility agreements if the Mandatory Prepayment is made; and
|
|
|
2.2.4
|
any further consent required under the Security Documents to permit NJL and PoH to borrow the New Term Loans and NJL, PoH and the Sub-Agent to grant the Fourth Priority
Security and enter into the Fourth Priority Security Documents is hereby given by the Lenders, the Agent, the Hermes Agent and the Trustee.
|
|
|
2.3
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that immediately upon and with effect from the
Effective Date:
|
|
|
2.3.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.3.2
|
the Security Documents (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) to which it is a party shall apply to,
and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.3.3
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged,
impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement;
and
|
|
|
2.3.4
|
its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain
in full force and effect as security for the obligations of the Borrower under
|
5
|
|
the Loan Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.4
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
Subject to Clause 3.2, the instructions and consents provided for in Clause 2 are conditional upon and shall not be effective unless and until the Agent has received
the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto; and
|
|
|
(c)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
6
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or
shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Effective Date (as defined in the Ninth Supplement) has occurred;
|
|
|
3.1.3
|
a tenth amendment to the Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center;
|
|
|
3.1.4
|
a Certified Copy of a confirmation in respect of each of the relevant Hermes Vessel Owner Second Guarantees duly executed by NJL and PoH; and
|
|
|
3.1.5
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date.
|
|
3.2
|
If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed
decides) to give the instructions and consents provided for in Clause 2 without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the
Agent within fourteen (14) days of the Effective Date (or such other period as the
|
7
|
|
Agent may stipulate) and the giving of the instructions and consents provided for in Clause 2 as aforesaid shall not be construed as a waiver of the Agent’s right to receive the documents or
evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to give the instructions and consents provided for in Clause 2 in the absence of such documents or evidence.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee or the Restructuring Trustee;
|
|
4.1.4
|
except for the recordation of the amendment to the Mortgage with the United States Coast Guard National Vessel Documentation Center, all authorisations, approvals,
consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents
contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
8
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of, or in connection with, the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.2
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed
shall (unless the Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida
33126, United States of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New
York, NY 10019, United States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the
|
9
|
|
Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another
address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and shall be
deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the person or
persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and shall be
expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the
New Process
|
10
|
|
Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London
and has been approved by the Agent to act as the Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all
process or other documents connected with proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Amelia Reffold
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/Amelia Reffold
|
|
for and on behalf of
|
|
)
|
|
|
|
PRIDE OF AMERICA SHIP HOLDING, LLC
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
EXECUTED
as a
DEED
and
DELIVERED
|
|
)
|
|
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
|
|
acting by Amelia Reffold
|
|
)
|
|
/s/ Amelia Reffold
|
|
expressly authorised in accordance with
|
|
)
|
|
|
|
the laws of Bermuda
|
|
)
|
|
|
|
by virtue of a power of attorney granted
|
|
)
|
|
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
|
|
on 17 November 2010
|
|
)
|
|
|
|
such execution being witnessed by:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
|
|
as a Lender
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
KFW
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
DVB BANK SE
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
as the Agent and the Trustee
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
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One St. Paul’s Churchyard
London
EC4M 8SH
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SIGNED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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duly authorised attorney-in-fact
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)
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/s/ Danae Zoi Mariel Ugolini
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for and on behalf of
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)
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COMMERZBANK AKTIENGESELLSCHAFT
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)
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as the Hermes Agent
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)
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in the presence of:
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)
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/s/ Roderick McGeachy
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Roderick McGeachy
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One St. Paul’s Churchyard
London
EC4M 8SH
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13
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr
Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Restructuring Trustee
D
n
B NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig
Nuland Knoff
Email: solveig.knoff@dnbnor.no
14
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40
3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email:
lam.curacao@dvbbank.com/james.neira@dvbbank.com
15
Exhibit 10.17
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 22 JULY 2010
NORWEGIAN JEWEL LIMITED
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
SIXTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
SECURED LOAN AGREEMENT
dated 20 April 2004 for the amount of up to USD334,050,000
pre- and post delivery finance for
“NORWEGIAN JEWEL”
a luxury cruise vessel with 1,188 passenger
cabins
being hull no S.667 at the yard of Meyer Werft GmbH
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/42-02376/44-01535/44-03225/45-01869/46-01272/47-00187/47-02888/49-00640
CONTENTS
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Page
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1
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Definitions and Construction
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2
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
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2
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3
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Conditions Precedent
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3
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4
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Representations and Warranties
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6
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5
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Fee and Expenses
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7
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6
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Further Assurance
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7
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7
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Counterparts
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8
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8
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Notices
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8
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9
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Governing Law
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8
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10
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Jurisdiction
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9
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Schedule 1
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The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
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13
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Schedule 2
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Amendment of Original Loan Agreement
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16
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Schedule 3
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Amendment of Original Guarantee
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19
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Schedule 4
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Repayment Schedule calculated using the Application of Proceeds Formulation
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20
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Schedule 5
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Repayment Schedule for the purpose of calculating the amount of the Margin payable
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21
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SIXTH SUPPLEMENTAL DEED
DATED 22 JULY 2010
BETWEEN:
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(1)
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NORWEGIAN JEWEL LIMITED
, a company incorporated under the laws of the Isle of Man and having its registered office at International House, Castle Hill, Victoria
Road, Douglas, Isle of Man, British Isles as borrower (the
“Borrower”
);
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(2)
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NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
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(3)
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THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
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(4)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
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(5)
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COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
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(6)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
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WHEREAS:
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(A)
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By a loan agreement dated 20 April 2004 as amended and/or restated by a first supplemental deed thereto dated as of 30 September 2005, a second supplemental
deed thereto dated 4 April 2006, a third supplemental deed thereto dated 13 November 2006, a fourth supplemental deed thereto dated 21 December 2007 and a fifth supplemental deed thereto dated 2 April 2009 entered into between
the Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan
Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of three hundred and thirty four million and fifty thousand Dollars (USD334,050,000) (the
“Loan”
) for the purpose of enabling the
Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among
other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended and/or restated by the said first supplement dated as of 30 September 2005, the said third supplement dated 13 November 2006 and the said
fifth supplemental deed dated 2 April 2009 (the
“Original Guarantee”
).
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(B)
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The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to the amendment of the definition of Permitted
Indebtedness (as defined in the Original Loan Agreement), to enable any member(s) of the NCLC Group to order the New Vessels (as defined in the Loan Agreement) (or either of them), and to allow the Guarantor to pay dividends after the listing of the
ordinary capital stock of the Guarantor on an Approved Stock Exchange (as defined in the Original Guarantee).
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(C)
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The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this sixth supplement to the Original
Loan Agreement (this
“Deed”
) which shall be executed as a deed.
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NOW THIS DEED WITNESSES as follows:
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1
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Definitions and Construction
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1.1
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In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
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“Application of Proceeds Formulation”
means the formulation set out
in Clause 3.3;
“Effective Date”
means the date on which the conditions precedent set out in Clause 3.1
are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as
amended by this Deed;
“Maximum Amount of the Delayed Principal Amount”
shall have the meaning to be specified
for such term in the Loan Agreement; and
“New Process Agent”
means EC3 Services Limited whose registered
office is presently at 51 Eastcheap, London EC3M 1JP.
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1.2
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The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
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2.1
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Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date:
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2.1.1
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the Original Loan Agreement and the Original Guarantee shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 or
Schedule 3 to this Deed (as the case may be) had been inserted or amended to read as set out in the second column of Schedule 2 or Schedule 3 to this Deed (as the case may be);
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2.1.2
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schedule 10 to the Original Loan Agreement had been deleted and substituted with Schedule 4 to this Deed; and
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2.1.3
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a new schedule 11 had been added to the Original Loan Agreement in the form of Schedule 5 to this Deed.
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2
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2.2
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Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from the Effective Date:
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2.2.1
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all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
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2.2.2
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the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Loan
Agreement, until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
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2.2.3
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its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
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2.2.4
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its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
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2.3
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Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
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3.1
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The amendment of the Original Loan Agreement and the Original Guarantee provided for in Clause 2 is conditional upon and shall not be effective unless and until the
Agent has received the following in form and substance satisfactory to it:
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3.1.1
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on the date of this Deed:
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(a)
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one (1) counterpart of this Deed duly executed by the parties hereto;
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(b)
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a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto;
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(c)
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evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
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(d)
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the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
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3
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(i)
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Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
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(ii)
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a notarially attested secretary’s certificate of each of the Relevant Parties:
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(1)
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attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
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(2)
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giving the names of its present officers and directors;
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(3)
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setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
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(4)
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giving the legal owner of its shares and the number of such shares held;
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(5)
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attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
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(6)
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containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
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or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
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(iii)
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the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
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4
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3.1.2
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evidence that the Cash Sweep Credit Facilities have been cancelled and/or prepaid pro rata based on the Maximum Amount of the Delayed Principal Amount (as defined in
the facility agreement for each Cash Sweep Credit Facility) for each Cash Sweep Credit Facility (or, if applicable, tranche thereof) by an aggregate amount of one hundred million Dollars (USD100,000,000);
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3.1.3
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a Certified Copy of a confirmation in respect of each of the Hermes Vessel Owner Second Guarantees duly executed by the owners of the Hermes Vessels other than the
Borrower;
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3.1.4
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a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments to the Original Loan Agreement and the Original Guarantee
contemplated by this Deed;
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3.1.5
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evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each NCLC Group Credit Facility have
been satisfied; and
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3.1.6
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agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
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PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2).
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3.2
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If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit
the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence
to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the
Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
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3.3
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The amount of the Loan to be prepaid pursuant to Clause 3.1.2 shall constitute a prepayment pursuant to clause 4.10 of the Loan Agreement and such prepayment and any
further prepayments to be made pursuant to clause 4.10 of the Loan Agreement shall be applied:
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3.3.1
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entirely to the Delayed Principal Amount; and
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3.3.2
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in forward order of maturity with respect to the dates of the Revised Repayments.
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5
For illustrative purposes:
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(a)
|
any prepayment made pursuant to Clause 3.1.2 shall be applied to the repayment of the Delayed Principal Amount in an amount equal to the difference between the amounts
in the third column (
Originally Scheduled Repayments
) and the fifth column (
Revised Repayments
) of schedule 10 to the Original Loan Agreement of each Revised Repayment i.e. in the amount of USD5,066,578.40 from 4 February 2014;
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(b)
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a revised repayment schedule (schedule 10 to the Loan Agreement and Schedule 4 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 and the amount of each Revised Repayment to be made after such prepayment; and
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(c)
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a revised repayment schedule (schedule 11 to the Loan Agreement and Schedule 5 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 in so far as they relate to the calculation of the amount of the Margin to be paid after such prepayment.
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4
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Representations and Warranties
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4.1
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Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
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4.1.1
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it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
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4.1.2
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this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
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4.1.3
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its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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its constitutional documents; or
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(c)
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any agreement or document to which it is a party or which is binding upon it or any of its assets,
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nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee;
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4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
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6
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4.1.5
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all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
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4.1.6
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it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
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5.1
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The Borrower shall pay to each of the Lenders (directly or through the Agent) on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the NCLC Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Loan Agreement,
the Loan Agreement or the Agency and Trust Deed to the contrary, no Lender shall be required to share with the other Lenders, the Agent, the Hermes Agent and/or the Trustee any such handling/work fee received.
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5.2
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The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
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5.3
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The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
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Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
7
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
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8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
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8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and
shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and
shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
8
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
9
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NORWEGIAN JEWEL LIMITED
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NCL CORPORATION LTD.
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as a Lender
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
10
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
KFW
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Shein Kwok Lim
|
|
)
|
|
for and on behalf of
|
|
) /s/ Shein Kwok Lim
|
|
DnB NOR BANK ASA
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Shein Kwok Lim
|
|
)
|
|
for and on behalf of
|
|
) /s/ Shein Kowk Lim
|
|
OVERSEA-CHINESE BANKING
|
|
)
|
|
CORPORATION LIMITED
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
|
|
GIROZENTRALE
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
11
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
CREDIT AGRICOLE CORPORATE
|
|
)
|
|
AND INVESTMENT BANK
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
HSBC BANK PLC
|
|
)
|
|
as the Agent, the Trustee and a Lender
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as the Hermes Agent
|
|
)
|
|
in the presence of: /s/ Danae Ugolini
|
|
)
|
|
Danae Ugolini
|
|
|
|
EC4M 8SH London
|
|
|
12
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
Name and address
|
|
|
|
Agent
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
|
|
|
|
|
Hermes Agent
|
|
|
|
COMMERZBANK
|
|
AKTIENGESELLSCHAFT
|
|
Corporate Banking
|
|
Structured Export and Trade Finance
|
|
Kaiserplatz
|
|
60261 Frankfurt am Main
|
|
Federal Republic of Germany
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
|
|
|
|
|
Trustee
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
13
|
|
|
Restructuring Trustee
|
|
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
|
|
|
|
|
Lenders
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
Global Shipping
|
|
Domstrasse 18
|
|
20095 Hamburg
|
|
Federal Republic of Germany
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Martin Hugger/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
|
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
|
|
|
|
|
|
|
|
KFW
|
|
|
|
Palmengartenstrasse 5-9
|
|
|
|
60325 Frankfurt am Main
|
|
|
|
Federal Republic of Germany
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
14
|
|
|
|
|
|
|
DnB NOR BANK ASA
|
|
|
|
|
|
Stranden 21
|
|
|
|
|
|
NO-0021 Oslo
|
|
|
|
|
|
Norway
|
|
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder
|
|
Email:
|
|
amra.koluder@dnbnor.no
|
|
|
|
|
|
|
|
|
|
|
OVERSEA-CHINESE BANKING
|
|
|
|
|
|
CORPORATION LIMITED
|
|
|
|
|
|
Singapore Branch
|
|
|
|
|
|
65 Chulia Street #10-00
|
|
|
|
|
|
Singapore 049513
|
|
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+65 6536 6449/6532 5347
|
|
Attn:
|
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
|
|
|
|
|
|
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
|
|
|
Friedrichswall 10
|
|
|
|
30159 Hannover
|
|
|
|
Federal Republic of Germany
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
|
|
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
|
|
|
|
Taunusanlage 14
|
|
|
|
60325 Frankfurt am Main
|
|
|
|
Federal Republic of Germany
|
|
|
|
|
|
|
|
|
|
|
Fax:
|
|
+49 69 74221 197
|
|
Attn:
|
|
Mr Stephan Bachmann
|
|
Email:
|
|
stephan.bachmann@ca-cib.com
|
|
|
|
with a copy to:
|
|
|
|
|
|
|
|
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
|
|
|
|
|
Fax:
|
|
+852 2868 1448
|
|
Attn:
|
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
15
Schedule 2
Amendment of Original Loan Agreement
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Application of
Proceeds Formulation”
|
|
means the following formulation for the application of any amount of the Loan to be prepaid pursuant to Clause 4.10:
(i) entirely to
the Delayed Principal Amount; and
(ii) in respect of any prepayment of the Loan to be made pursuant to clause 3.1.2 of the
Sixth Supplemental Deed, in forward order of maturity with respect to the dates of the Revised Repayments; and
(iii) in respect of any other prepayment of the Loan to be made pursuant to Clause 4.10, in forward
order of maturity with respect to the dates of the Revised Repayments, subject to the approval of all of the Lenders in respect of each such prepayment and, if the approval of all of the Lenders is not obtained, in inverse order of maturity with
respect to the dates of the Revised Repayments;
|
|
|
|
Clause 1.1, definition of
“Margin”
(paragraph (ii))
|
|
(ii) from 1 January 2009 until 31 December 2009 inclusive the rate of
two point two five per cent (2.25%) per annum and thereafter two point seven five per cent (2.75%) per annum on the Delayed Principal Amount;
notwithstanding the provisions of the penultimate paragraph of Clause 4.10 (as more particularly described in the final paragraph of Clause
4.10);
|
|
|
|
|
Clause 1.1, definition
(new) of
“Maximum
Amount of the Delayed
Principal Amount”
|
|
means USD40,532,627.07;
|
|
|
|
Clause 1.1, definition
(new) of
“New Vessels”
|
|
means the two (2) newbuild cruise vessels each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of
passenger cabins or gross or net tonnage, not on order by a member of the NCLC Group as of the Effective Date (as defined in the Sixth Supplemental Deed);
|
16
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
Clause 1.1, definition of
“Permitted
Indebtedness”
|
|
means (i) any monies borrowed or raised other than from any direct or indirect shareholder of the Borrower prior to the date on which the last of the Fifth Supplemental Deed and the
Amendment Documents have been signed by all the parties thereto and notified by the Borrower to the Agent prior to such date; (ii) the Letter of Credit Facilities; (iii) Permitted Refinancing Indebtedness and (iv) one or more financing arrangements
entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term sheet(s) related to such financing arrangement(s) having been disclosed by the Borrower to Hermes prior to their execution by the
Borrower or any other member of the NCLC Group and such financing arrangement(s) being on terms satisfactory to Hermes. The term sheet(s) will be disclosed to Hermes on the basis that the terms of such financing arrangement(s) shall be deemed
satisfactory unless Hermes notifies the Borrower to the contrary within five (5) business days (in the city in which Hermes has its office) of receipt of the term sheet(s);
|
|
|
|
Clause 1.1, definition of
“Sixth Supplemental
Deed”
|
|
means the sixth supplemental deed dated 2010 to this
Agreement;
|
|
|
|
Clause 1.1, definition
(new) of
“Total
Delayed Principal
Amount”
|
|
means USD280,561,651.28, being the aggregate of the Maximum Amount of the Delayed Principal Amount (as defined in the facility agreement for each Cash Sweep Credit Facility) for
each Cash Sweep Credit Facility (or, if applicable, tranche thereof);
|
|
|
|
|
Clause 4.1
|
|
On giving at least thirty (30) days’ prior notice to the Agent, the Borrower may on the last day of a Pre-Delivery Interest Period or an Interest Period prepay (without premium
or penalty, subject to Clause 4.8) the whole or any relevant part of the Loan (but if in part in an amount of five million Dollars (USD5,000,000) or an integral multiple thereof). Notwithstanding anything to the contrary in this Clause 4.1, any
prepayment made before an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid shall be governed by Clause 4.10.
|
|
|
|
|
Clause 4.7 (third
sentence)
|
|
Subject to Clause 4.9 and Clause 4.10, each prepayment under this Agreement shall be applied in satisfaction of the Borrower’s remaining obligations under Clause 3 in inverse
chronological order and Schedule 10 and Schedule 11 shall be recalculated and agreed in accordance with Clause 4.10.
|
17
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 4.10
|
|
Notwithstanding anything to the contrary in this Agreement, other than in respect of ordinary refinancings, no voluntary prepayment
of the Loan may be made before an amount equal to the Total Delayed Principal Amount has been cancelled and/or prepaid and/or repaid unless pro rata prepayments, reductions and/or cancellations of the other Cash Sweep Credit Facilities are to be
made. The prepayment, reduction and/or cancellation to be made under each Cash Sweep Credit Facility shall be calculated based on each Cash Sweep Credit Facility’s remaining outstanding Delayed Principal Amount (as defined in this Agreement in
respect of the Loan and as defined in the relevant facility agreement in respect of each of the other Cash Sweep Credit Facilities) as of the date of the prepayment, reduction and/or cancellation, save for any prepayment to be made pursuant to the
Sixth Supplemental Deed. Each such outstanding Delayed Principal Amount or Maximum Amount of the Delayed Principal Amount (as the case may be), to the extent it is not already denominated in Dollars, shall be converted into Dollars on the date
falling ten (10) Business Days prior to the relevant prepayment, reduction and/or cancellation date at the rate which appears on the Reuters Page ECB37 at 1.30 p.m. London time on that date, for the purposes of such calculation. Subject to
Clause 4.8 and the rest of this Clause 4.10, with respect to the Loan on the relevant date of measurement, any prepayment made before an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid
and/or repaid shall be applied in accordance with the Application of Proceeds Formulation. As at the Effective Date (as defined in the Sixth Supplemental Deed), Schedule 10 contains a repayment schedule calculated following the prepayment of an
amount of the Loan as more particularly described in clause 3.1.2 of the Sixth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 10 shall be recalculated using the
Application of Proceeds Formulation or in accordance with Clause 4.7 (as the case may be), shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a
part of this Agreement.
Notwithstanding anything to the contrary,
paragraph (ii) of the definition of Margin shall continue to apply as if the amount of each Revised Repayment or Originally Scheduled Repayment prepaid as described in the last three (3) sentences of the previous paragraph of this Clause 4.10
or in Clause 4.1 had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised Repayment or Originally Scheduled Repayment prior to any voluntary prepayment made under this Clause 4.10
pursuant to the Sixth Supplemental Deed. As at the Effective Date (as defined in the Sixth Supplemental Deed), Schedule 11 contains a repayment schedule calculated following the prepayment of an amount of the Loan as more particularly described in
clause 3.1.2 of the Sixth Supplemental Deed, on the basis that the amount of each such Revised Repayment prepaid had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised
Repayment prior to any voluntary prepayment made under this Clause 4.10 pursuant to the Sixth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 11 shall be recalculated on
the basis described in this paragraph of this Clause 4.10, shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part of this
Agreement.
|
18
Schedule 3
Amendment of Original Guarantee
|
|
|
|
|
Clause
|
|
Amendment
|
|
Clause 10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Loan Agreement or
this Deed.
|
|
|
|
|
Clause 10.10 (new)
|
|
The Guarantor shall not (and will procure that no other company in the NCLC Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is
available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing arrangements.
|
|
|
|
|
Clause 11.3
|
|
The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other
distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the NCLC Group, (ii) the Guarantor may pay dividends in respect of tax liability to each relevant
jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the NCLC Group being treated as a pass-through entity
or attributable to any member of the NCLC Group, and (iii) after the later of (x) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been
prepaid and/or repaid, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such
payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend and (II) after giving effect to such dividend
the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 of the Guarantee is less than 5.50:1.00. The Agent shall
use the Application of Proceeds Formulation to determine whether an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid.
The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions
will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
|
19
Schedule 4
Repayment Schedule calculated using the Application of Proceeds Formulation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
Ordinary
Principal
Amount
USD
|
|
|
Originally
Scheduled
Repayments
USD
|
|
|
Delayed
Principal
Amount
USD
|
|
|
New Revised
Repayments
USD
|
|
|
Revised
Principal
Amount
USD
|
|
|
4-Aug-10
|
|
|
189,152,259.77
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
|
|
|
|
229,684,886.84
|
|
|
|
189,152,259.77
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
|
|
|
|
229,684,886.84
|
|
|
Amendment Prepayment
|
|
|
189,152,259.77
|
|
|
|
|
|
|
|
40,532,627.07
|
|
|
|
|
|
|
|
229,684,886.84
|
|
|
|
189,152,259.77
|
|
|
|
|
|
|
|
26,085,667.95
|
|
|
|
14,446,959.12
|
|
|
|
215,237,927.72
|
|
|
4-Feb-11
|
|
|
175,641,384.08
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
216,174,011.15
|
|
|
|
175,641,384.08
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
201,727,052.03
|
|
|
4-Aug-11
|
|
|
162,130,508.39
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
202,663,135.46
|
|
|
|
162,130,508.39
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
188,216,176.34
|
|
|
6-Feb-12
|
|
|
148,619,632.70
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
189,152,259.77
|
|
|
|
148,619,632.70
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
174,705,300.65
|
|
|
6-Aug-12
|
|
|
135,108,757.01
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
175,641,384.08
|
|
|
|
135,108,757.01
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
161,194,424.96
|
|
|
4-Feb-13
|
|
|
121,597,881.32
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
162,130,508.39
|
|
|
|
121,597,881.32
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
147,683,549.27
|
|
|
5-Aug-13
|
|
|
108,087,005.63
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
148,619,632.70
|
|
|
|
108,087,005.63
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
134,172,673.58
|
|
|
4-Feb-14
|
|
|
94,576,129.94
|
|
|
|
13,510,875.69
|
|
|
|
35,466,048.67
|
|
|
|
18,577,454.09
|
|
|
|
130,042,178.61
|
|
|
|
94,576,129.94
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
120,661,797.89
|
|
|
4-Aug-14
|
|
|
81,065,254.25
|
|
|
|
13,510,875.69
|
|
|
|
30,399,470.27
|
|
|
|
18,577,454.09
|
|
|
|
111,464,724.52
|
|
|
|
81,065,254.25
|
|
|
|
13,510,875.69
|
|
|
|
26,085,667.95
|
|
|
|
13,510,875.69
|
|
|
|
107,150,922.20
|
|
|
4-Feb-15
|
|
|
67,554,378.56
|
|
|
|
13,510,875.69
|
|
|
|
25,332,891.87
|
|
|
|
18,577,454.09
|
|
|
|
92,887,270.43
|
|
|
|
67,554,378.56
|
|
|
|
13,510,875.69
|
|
|
|
25,332,892.13
|
|
|
|
14,263,651.51
|
|
|
|
92,887,270.69
|
|
|
4-Aug-15
|
|
|
54,043,502.87
|
|
|
|
13,510,875.69
|
|
|
|
20,266,313.47
|
|
|
|
18,577,454.09
|
|
|
|
74,309,816.34
|
|
|
|
54,043,502.87
|
|
|
|
13,510,875.69
|
|
|
|
20,266,313.73
|
|
|
|
18,577,454.09
|
|
|
|
74,309,816.60
|
|
|
4-Feb-16
|
|
|
40,532,627.18
|
|
|
|
13,510,875.69
|
|
|
|
15,199,735.07
|
|
|
|
18,577,454.09
|
|
|
|
55,732,362.25
|
|
|
|
40,532,627.18
|
|
|
|
13,510,875.69
|
|
|
|
15,199,735.33
|
|
|
|
18,577,454.09
|
|
|
|
55,732,362.51
|
|
|
4-Aug-16
|
|
|
27,021,751.49
|
|
|
|
13,510,875.69
|
|
|
|
10,133,156.67
|
|
|
|
18,577,454.09
|
|
|
|
37,154,908.16
|
|
|
|
27,021,751.49
|
|
|
|
13,510,875.69
|
|
|
|
10,133,156.93
|
|
|
|
18,577,454.09
|
|
|
|
37,154,908.42
|
|
|
6-Feb-17
|
|
|
13,510,875.80
|
|
|
|
13,510,875.69
|
|
|
|
5,066,578.27
|
|
|
|
18,577,454.09
|
|
|
|
18,577,454.07
|
|
|
|
13,510,875.80
|
|
|
|
13,510,875.69
|
|
|
|
5,066,578.53
|
|
|
|
18,577,454.09
|
|
|
|
18,577,454.33
|
|
|
4-Aug-17
|
|
|
—
|
|
|
|
13,510,875.80
|
|
|
|
—
|
|
|
|
18,577,454.07
|
|
|
|
—
|
|
|
|
—
|
|
|
|
13,510,875.80
|
|
|
|
—
|
|
|
|
18,577,454.33
|
|
|
|
—
|
|
20
Schedule 5
Repayment Schedule for the purpose of calculating the amount of the Margin payable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed
Principal
Amount
|
|
|
New Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
4-Aug-10
|
|
|
189,152,259.77
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
—
|
|
|
|
229,684,886.84
|
|
|
|
189,152,259.77
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
—
|
|
|
|
229,684,886.84
|
|
|
Amendment Prepayment
|
|
|
189,152,259.77
|
|
|
|
—
|
|
|
|
40,532,627.07
|
|
|
|
—
|
|
|
|
229,684,886.84
|
|
|
|
178,645,380.42
|
|
|
|
|
|
|
|
36,592,547.30
|
|
|
|
14,446,959.12
|
|
|
|
215,237,927.72
|
|
|
4-Feb-11
|
|
|
175,641,384.08
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
216,174,011.15
|
|
|
|
165,134,504.73
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
201,727,052.03
|
|
|
4-Aug-11
|
|
|
162,130,508.39
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
202,663,135.46
|
|
|
|
151,623,629.04
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
188,216,176.34
|
|
|
4-Feb-12
|
|
|
148,619,632.70
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
189,152,259.77
|
|
|
|
138,112,753.35
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
174,705,300.65
|
|
|
4-Aug-12
|
|
|
135,108,757.01
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
175,641,384.08
|
|
|
|
124,601,877.66
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
161,194,424.96
|
|
|
4-Feb-13
|
|
|
121,597,881.32
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
162,130,508.39
|
|
|
|
111,091,001.97
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
147,683,549.27
|
|
|
5-Aug-13
|
|
|
108,087,005.63
|
|
|
|
13,510,875.69
|
|
|
|
40,532,627.07
|
|
|
|
13,510,875.69
|
|
|
|
148,619,632.70
|
|
|
|
97,580,126.28
|
|
|
|
13,510,875.69
|
|
|
|
36,592,547.30
|
|
|
|
13,510,875.69
|
|
|
|
134,172,673.58
|
|
|
4-Feb-14
|
|
|
94,576,129.94
|
|
|
|
13,510,875.69
|
|
|
|
35,466,048.67
|
|
|
|
18,577,454.09
|
|
|
|
130,042,178.61
|
|
|
|
87,754,034.88
|
|
|
|
13,510,875.69
|
|
|
|
32,907,763.01
|
|
|
|
13,510,875.69
|
|
|
|
120,661,797.89
|
|
|
4-Aug-14
|
|
|
81,065,254.25
|
|
|
|
13,510,875.69
|
|
|
|
30,399,470.27
|
|
|
|
18,577,454.09
|
|
|
|
111,464,724.52
|
|
|
|
77,927,943.47
|
|
|
|
13,510,875.69
|
|
|
|
29,222,978.73
|
|
|
|
13,510,875.69
|
|
|
|
107,150,922.20
|
|
|
4-Feb-15
|
|
|
67,554,378.56
|
|
|
|
13,510,875.69
|
|
|
|
25,332,891.87
|
|
|
|
18,577,454.09
|
|
|
|
92,887,270.43
|
|
|
|
67,554,378.75
|
|
|
|
13,510,875.69
|
|
|
|
25,332,891.94
|
|
|
|
14,263,651.51
|
|
|
|
92,887,270.69
|
|
|
4-Aug-15
|
|
|
54,043,502.87
|
|
|
|
13,510,875.69
|
|
|
|
20,266,313.47
|
|
|
|
18,577,454.09
|
|
|
|
74,309,816.34
|
|
|
|
54,043,503.06
|
|
|
|
13,510,875.69
|
|
|
|
20,266,313.54
|
|
|
|
18,577,454.09
|
|
|
|
74,309,816.60
|
|
|
4-Feb-16
|
|
|
40,532,627.18
|
|
|
|
13,510,875.69
|
|
|
|
15,199,735.07
|
|
|
|
18,577,454.09
|
|
|
|
55,732,362.25
|
|
|
|
40,532,627.37
|
|
|
|
13,510,875.69
|
|
|
|
15,199,735.14
|
|
|
|
18,577,454.09
|
|
|
|
55,732,362.51
|
|
|
4-Aug-16
|
|
|
27,021,751.49
|
|
|
|
13,510,875.69
|
|
|
|
10,133,156.67
|
|
|
|
18,577,454.09
|
|
|
|
37,154,908.16
|
|
|
|
27,021,751.68
|
|
|
|
13,510,875.69
|
|
|
|
10,133,156.74
|
|
|
|
18,577,454.09
|
|
|
|
37,154,908.42
|
|
|
6-Feb-17
|
|
|
13,510,875.80
|
|
|
|
13,510,875.69
|
|
|
|
5,066,578.27
|
|
|
|
18,577,454.09
|
|
|
|
18,577,454.07
|
|
|
|
13,510,875.99
|
|
|
|
13,510,875.69
|
|
|
|
5,066,578.34
|
|
|
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18,577,454.09
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18,577,454.33
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4-Aug-17
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13,510,875.80
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18,577,454.07
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13,510,875.99
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18,577,454.33
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21
Exhibit 10.18
DATED 18 NOVEMBER 2010
NORWEGIAN JEWEL LIMITED
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
SEVENTH SUPPLEMENTAL DEED IN RELATION TO
(AMONG OTHER THINGS) SECURED LOAN AGREEMENT
dated 20 April 2004 for
the amount of up to USD334,050,000
pre- and post delivery finance for
“NORWEGIAN JEWEL”
a luxury cruise vessel with 1,188 passenger cabins
being hull no S.667
at the yard of Meyer Werft GmbH
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/42-02376/44-01535/44-03225/45-01869/46-01272/47-00187/47-02888/49-00640
CONTENTS
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Page
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1
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Definitions and Construction
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2
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Post Delivery Mortgage, Earnings Assignment and Insurance
Assignment and Second Mortgage and Second Assignments in respect of m.v. “NORWEGIAN JADE”
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3
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3
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Conditions Precedent
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6
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4
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Representations and Warranties
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8
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5
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Expenses
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9
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6
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Further Assurance
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10
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7
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Counterparts
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10
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8
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Notices
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10
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9
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Governing Law
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11
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10
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Jurisdiction
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11
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Schedule 1
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The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
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15
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SEVENTH SUPPLEMENTAL DEED
DATED 18 November 2010
BETWEEN:
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(1)
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NORWEGIAN JEWEL LIMITED
, a company incorporated under the laws of the Isle of Man and having its registered office at International House, Castle Hill, Victoria
Road, Douglas, Isle of Man, British Isles as borrower (the
“Borrower”
);
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(2)
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NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
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(3)
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THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
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(4)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
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(5)
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COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
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(6)
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HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
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WHEREAS
:
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(A)
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By a loan agreement dated 20 April 2004 as amended and/or restated by a first supplemental deed thereto dated as of 30 September 2005, a second supplemental
deed thereto dated 4 April 2006, a third supplemental deed thereto dated 13 November 2006, a fourth supplemental deed thereto dated 21 December 2007, a fifth supplemental deed thereto dated 2 April 2009 and a sixth supplemental
deed thereto dated 22 July 2010 (the
“Sixth Supplement”
) entered into between the Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the
Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of three hundred and thirty four million and fifty thousand
Dollars (USD334,050,000) (the
“Loan”
) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions
therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended and/or restated by the said first supplement dated as of
30 September 2005, the said third supplement dated 13 November 2006 and the said fifth supplemental deed dated 2 April 2009 (the
“Original Guarantee”
), a first priority mortgage dated 4 August 2005 over the
Borrower’s vessel “NORWEGIAN JEWEL” and a second priority mortgage over m.v. “NORWEGIAN JADE” and a second preferred mortgage over m.v. “PRIDE OF AMERICA” each dated 2 April 2009.
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(B)
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The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to (i) the borrowing by the
Borrower from a syndicate of banks (the
“New Term Loans Lenders”
), the facility agent for which is KfW IPEX-Bank GmbH, of loans which, when aggregated with the loans to be similarly borrowed by Pride of Hawaii, LLC
(
“PoH”
), will amount to the lesser of (x) the sum of (I) 10% of the initial
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construction prices of the New Vessels and (II) 100% of the total aggregate amounts payable by the Borrower and PoH to the Hermes agent in relation to the New Term Loans (as defined below) in
respect of the Hermes cover for such facilities (the
“New Hermes Fees”
), (y) the sum of (I) EUR123,000,000 and (II) EUR3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the
facility agent for the New Term Loans, Hermes and the Guarantor) provided that the maximum amount of the New Term Loans (as defined below) available to the Borrower for drawing shall not exceed USD94,576,192.83 unless the Dollar cap of
USD224,770,000 is so increased, to finance in part the acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees, which loans will constitute Permitted Indebtedness from the Effective Date (as defined
in the Sixth Supplement) (the
“New Term Loans”
) (ii) the granting by the Borrower and PoH of mortgages and deeds of covenants over m.v.s “NORWEGIAN JEWEL” and “NORWEGIAN JADE” (the
“Relevant Hermes
Vessels”
) respectively that are junior to all mortgages and deeds of covenants existing on the date hereof in respect of such Relevant Hermes Vessel, assignments of the earnings (including intercompany charters) and insurances of the
Relevant Hermes Vessels that are junior to all earnings and insurance assignments, respectively, existing on the date hereof in respect of such Relevant Hermes Vessel and a subordination and assignment that is junior to all Manager’s
subordinations and assignments existing on the date hereof in respect of such Relevant Hermes Vessel to be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE”, each in favour of the New Term Loans
Lenders or a trustee and/or agent therefor (the
“Fourth Mortgagee”
) to secure the repayment of the New Term Loans (the
“Fourth Priority Security Documents”
) and (iii) the prepayment of the relevant part of the
New Term Loans in full if (w) the construction contract in respect of a New Vessel is terminated prior to the delivery date of such New Vessel, (x) the delivery date of the relevant New Vessel does not occur on or before (I) in the
case of the part of the New Term Loans related to the first New Vessel, 23 December 2013 and (II) in the case of the part of the New Term Loans related to the second New Vessel, 8 December 2014, (y) either new export credit facility
to be entered into by the purchasers of the New Vessels shall terminate or (z) certain insolvency events (as specified in the loan documentation in respect of the New Term Loans) occur with respect to the yard that is building the New Vessels
(a
“Mandatory Prepayment”
).
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(C)
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The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this seventh supplement (this
“Deed”
) which shall be executed as a deed.
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NOW THIS DEED WITNESSES
as follows:
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1
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Definitions and Construction
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1.1
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In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
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“Effective Date”
means the date on which the conditions precedent
set out in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
2
“Fourth Priority Security”
means the security interests to be granted
pursuant to the Fourth Mortgages, the Fourth Assignments and all other security documents to be delivered in connection with the New Term Loans;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as amended by this Deed; and
“New Process Agent”
means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
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1.2
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The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
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2
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Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Post Delivery Mortgage, Earnings Assignment
and Insurance Assignment and Second Mortgage and Second Assignments in respect of m.v. “NORWEGIAN JADE”
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2.1
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Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date the Original Loan Agreement shall be read and construed as
if:
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2.1.1
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the following definitions had been inserted in the appropriate place, alphabetically, in clause 1.1 of the Original Loan Agreement:
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“
“Fourth Assignments”
means the two (2) valid and effective legal assignments of the
earnings (including intercompany charters) and insurances of the Vessel and m.v. “NORWEGIAN JADE” (together with the notices thereof) one (1) to be executed by each of the owners of the relevant Hermes Vessels in respect of its
Hermes Vessel and the one (1) valid and effective subordination and assignment to be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE” in each case in favour of the New Term Loans Lenders or the
collateral agent and/or trustee therefor and junior to all subordinations and/or assignments existing as of the date of the Seventh Supplemental Deed in respect of such Hermes Vessel;
“Fourth Mortgages”
means the two (2) statutory Bahamian ship mortgages and deeds of covenants
collateral thereto one (1) to be granted by respectively each of the owners of the Vessel and m.v. “NORWEGIAN JADE” over its Hermes Vessel in favour of the New Term Loans Lenders or the collateral agent and/or trustee therefor
and junior to all ship mortgages and deeds of covenants existing as of the date of the Seventh Supplemental Deed in respect of such Hermes Vessel;
“Fourth Priority Security Co-ordination Deeds”
means the deeds to be made between (among others) HSBC Bank plc (as trustee for the relevant Guaranteed Loan Lenders, as
first mortgagees), the Restructuring Trustee (as trustee for the relevant Guaranteed Loan Lenders, as second mortgagees), the Restructuring Trustee (as trustee for the Non-Guaranteed Loan Lenders, as third mortgagees), the facility or collateral
agent (as the
3
case may be) for the New Term Loans Lenders and the owners of the Vessel and m.v. “NORWEGIAN JADE” in relation to the Fourth Mortgages and the Fourth Assignments such co-ordination
deeds to be in the form and on the terms and conditions agreed between the Lenders and the other parties to the co-ordination deed on the date of the Seventh Supplemental Deed, such terms and conditions to include, without limitation, the
conditional ability of the Borrower and Pride of Hawaii, LLC to, upon the cancellation of any construction contract for the New Vessels, prepay the relevant part of the New Term Loans in full;
“New Hermes Fees”
means the total aggregate amounts payable by the Borrower and Pride of Hawaii, LLC
to the Hermes agent in relation to the New Term Loans in respect of the Hermes cover for such facilities;
“New Term Loans”
means the loans to be borrowed by the Borrower from the New Term Loans Lenders which,
when aggregated with the loans to be similarly borrowed by Pride of Hawaii, LLC, will amount to the lesser of (x) the sum of (i) 10% of the initial construction prices of the New Vessels and (ii) 100% of the New Hermes Fees
(y) the sum of (i) EUR123,000,000 and (ii) EUR3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to finance in part the
acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees;
“New Term Loans Lenders”
means the lenders of the New Term Loans;
“Seventh Supplemental Deed”
means the seventh supplemental deed dated November 2010 to this
Agreement;”;
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2.1.2
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the following paragraphs had been inserted in the appropriate place, alphabetically, in paragraph (iv)(y) of the definition of
“Permitted Liens”
in
clause 1.1 of the Original Loan Agreement:
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“
(i) the Fourth Mortgages and (j) the Fourth Assignments
”; and
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2.1.3
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the following words had been inserted in the definition of
“Security Documents”
after the words “
the Third Priority Security Co-ordination
Deed
” in clause 1.1 of the Original Loan Agreement:
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“
, the Fourth Priority Security Co-ordination Deeds
”.
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2.2
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Subject to Clause 3.1 and pursuant to Clause 2.1, immediately upon and with effect from the Effective Date:
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2.2.1
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notwithstanding the provisions of clause 10.11.1 of the Original Loan Agreement, the Lenders, the Agent and the Hermes Agent agree and consent to the
Borrower borrowing the relevant amount of the New Term Loans referred to in recital (B) of this Deed and, if so required, on-lending such amount to the Guarantor or to the intended owners of the New Vessels. In respect of such on-lending the
Borrower and the Guarantor each hereby confirms that so on-lending the relevant amount of the New Term Loans
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4
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will not prevent the Borrower from performing its obligations under the Loan Agreement at any time;
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2.2.2
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notwithstanding the provisions of clause 10.5 of the Original Loan Agreement and the relevant Security Documents, the Lenders, the Agent and the Hermes Agent agree and
consent to the Borrower granting the relevant Fourth Priority Security and entering into the relevant Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth
Priority Security Documents;
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2.2.3
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notwithstanding the provisions of the relevant Security Documents, the Lenders, the Agent, the Hermes Agent and the Trustee agree and consent to PoH and the Manager
granting the other Fourth Priority Security and entering into the relevant Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth Priority Security
Documents;
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2.2.4
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the Lenders, the Agent and the Hermes Agent instruct the Trustee to instruct the Restructuring Trustee, pursuant to the relevant Second Priority Security Co-ordination
Deed, to allow PoH and/or the Manager (as the case may be) to grant the relevant Fourth Priority Security and enter into the Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation
to the relevant Fourth Priority Security Documents;
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2.2.5
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the Lenders, the Agent, the Hermes Agent and/or the Trustee instruct the Agent (as first priority mortgagee of m.v. “NORWEGIAN JEWEL”) to enter into, and the
Trustee (in relation to the second priority mortgage over m.v. “NORWEGIAN JADE”) to procure the Restructuring Trustee to enter into, intercreditor deeds with the relevant parties in relation to the Fourth Priority Security Documents,
in form approved by the Lenders and the Hermes Agent, it being understood that:
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(a)
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a Mandatory Prepayment shall be permitted provided that, at the relevant time, (x) the Lenders so approve (such approval not to be unreasonably withheld or
delayed) and (y) the Lenders receive evidence satisfactory to them from the Guarantor that the Borrower and PoH (after giving effect to any contributions from the Guarantor) will be able to meet their obligations for the next twelve
(12) months under respectively the Loan Agreement and the EUR308,130,000 facility agreement dated 20 April 2004 (as amended and/or restated from time to time) if the Mandatory Prepayment is made; and
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(b)
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if the Agent is required to give its written consent pursuant to clause 5.1.1 and/or clause 5.1.2 of the intercreditor deed in respect of m.v. “NORWEGIAN
JEWEL” referred to in this Clause 2.2.5, the Agent shall obtain the prior approval of the Lenders before giving its consent to the Fourth Mortgagee; and
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2.2.6
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any further consent required under the Original Loan Agreement and the other Security Documents to permit the Borrower and PoH to borrow the
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5
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New Term Loans and the Borrower, PoH and the Manager to grant the Fourth Priority Security and enter into the Fourth Priority Security Documents is hereby given by the Lenders, the Agent, the
Hermes Agent and the Trustee.
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2.3
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Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that immediately upon and with effect from the
Effective Date:
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2.3.1
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all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
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2.3.2
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the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Loan
Agreement, until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
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2.3.3
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its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
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2.3.4
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its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
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2.4
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Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
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3.1
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Subject to Clause 3.2, the instructions and consents provided for in Clause 2 are conditional upon and shall not be effective unless and until the Agent has received
the following in form and substance satisfactory to it:
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3.1.1
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on the date of this Deed:
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(a)
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one (1) counterpart of this Deed duly executed by the parties hereto;
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(b)
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a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto; and
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6
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(c)
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the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
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(i)
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Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
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(ii)
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a notarially attested secretary’s certificate of each of the Relevant Parties:
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(1)
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attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
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(2)
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giving the names of its present officers and directors;
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(3)
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setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
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(4)
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giving the legal owner of its shares and the number of such shares held;
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(5)
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attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
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(6)
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containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
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or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
7
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(iii)
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the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
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3.1.2
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evidence that the Effective Date (as defined in the Sixth Supplement) has occurred;
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3.1.3
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a Certified Copy of a confirmation in respect of the relevant Hermes Vessel Owner Second Guarantee duly executed by Pride of Hawaii, LLC;
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3.1.4
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a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments contemplated by this Deed; and
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3.1.5
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agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware and England in such form as the Agent may
require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
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PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date.
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3.2
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If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to give the
instructions and consents provided for in Clause 2 without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen
(14) days of the Effective Date (or such other period as the Agent may stipulate) and the giving of the instructions and consents provided for in Clause 2 as aforesaid shall not be construed as a waiver of the Agent’s right to receive the
documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to give the instructions and consents provided for in Clause 2 in the absence of such documents or evidence.
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4
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Representations and Warranties
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4.1
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Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
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4.1.1
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it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
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4.1.2
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this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
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4.1.3
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its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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its constitutional documents; or
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8
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(c)
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any agreement or document to which it is a party or which is binding upon it or any of its assets,
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nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document save as contemplated by the
relevant Fourth Security Documents and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any
security granted by it to the Trustee or the Restructuring Trustee;
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4.1.4
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all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
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4.1.5
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all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
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4.1.6
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it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
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5.1
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The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.2
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
9
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and
shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and
shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
10
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
11
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Amelia Reffold
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/Amelia Reffold
|
|
for and on behalf of
|
|
)
|
|
|
|
NORWEGIAN JEWEL LIMITED
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
EXECUTED
as a
DEED
and
DELIVERED
|
|
)
|
|
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
|
|
acting by Amelia Reffold
|
|
)
|
|
/s/ Amelia Reffold
|
|
expressly authorised in accordance with
|
|
)
|
|
|
|
the laws of Bermuda
|
|
)
|
|
|
|
by virtue of a power of attorney granted
|
|
)
|
|
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
|
|
on 17 November 2010
|
|
)
|
|
|
|
such execution being witnessed by:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
|
|
as a Lender
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
KFW
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
DnB NOR BANK ASA
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
By Shien Kwok Lim
|
|
)
|
|
|
|
duly authorised signatory
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
OVERSEA-CHINESE BANKING
|
|
)
|
|
|
|
CORPORATION LIMITED
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
|
|
|
|
GIROZENTRALE
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
CREDIT AGRICOLE CORPORATE
|
|
)
|
|
|
|
AND INVESTMENT BANK
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
as the Agent, the Trustee and a Lender
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
duly authorised attorney-in-fact
|
|
)
|
|
/s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
|
|
as the Hermes Agent
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
/s/ Roderick McGeachy
|
|
|
|
|
|
Roderick McGeachy
|
|
|
|
|
|
Stephenson Harwood
|
|
|
|
|
|
One St. Paul’s Churchyard
London
EC4M 8SH
|
|
|
|
|
14
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr
Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
15
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan
Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan
Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef
Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
16
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder
Email: amra.koluder@dnbnor.no
OVERSEA-CHINESE BANKING
CORPORATION
LIMITED
Singapore Branch
65
Chulia Street #10-00
Singapore 049513
Fax: +65 6536 6449/6532 5347
Attn: Ms Lee King Lan/Ms Elaine Lam
Email: LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511
361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan
Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence
Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
17
Exhibit 10.25
DATED 19 OCTOBER 2009
PRIDE OF HAWAII, INC.
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
NCL (BAHAMAS) LTD.
(as bareboat charterer)
NCL AMERICA HOLDINGS, INC.
(as shareholder)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
SEVENTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
SECURED LOAN AGREEMENT
dated 20 April 2004 for the equivalent amount in United States Dollars
of up to EUR308,130,000
pre- and post delivery finance for
“NORWEGIAN JADE”
a luxury cruise vessel with 1,188 passenger cabins
being hull no S.668 at the yard of Meyer Werft GmbH
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
42-02376/44-01535/44-03225/45-01869/46-01272/46-03022/47-00187/47-02888/48-01494
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1
|
|
Definitions and Construction
|
|
|
2
|
|
|
2
|
|
Amendment of Original Loan Agreement
|
|
|
3
|
|
|
3
|
|
Conditions Precedent
|
|
|
4
|
|
|
4
|
|
Representations and Warranties
|
|
|
6
|
|
|
5
|
|
Fee and Expenses
|
|
|
7
|
|
|
6
|
|
Further Assurance
|
|
|
7
|
|
|
7
|
|
Counterparts
|
|
|
8
|
|
|
8
|
|
Notices
|
|
|
8
|
|
|
9
|
|
Governing Law
|
|
|
8
|
|
|
10
|
|
Jurisdiction
|
|
|
9
|
|
|
Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
13
|
|
SEVENTH SUPPLEMENTAL DEED
DATED 19 OCTOBER 2009
BETWEEN:
|
(1)
|
PRIDE OF HAWAII, INC.
(formerly known as Ship Ventures Inc.) of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of
America as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
NCL AMERICA HOLDINGS, INC.
of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 198011, United States of America as shareholder (the
“Shareholder”
);
|
|
(4)
|
NCL (BAHAMAS) LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as bareboat charterer (the
“Bareboat Charterer”
);
|
|
(5)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(7)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(8)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS
:
|
(A)
|
By a loan agreement dated 20 April 2004 as amended and/or restated by a first supplemental deed thereto dated 25 October 2004, a second supplemental deed
thereto dated as of 30 September 2005, a third supplemental deed thereto dated 13 November 2006, a fourth supplemental deed thereto dated 21 December 2007, a fifth supplemental deed thereto dated 10 February 2008 and a sixth
supplemental deed thereto dated 2 April 2009 entered into between the Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as
trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the Equivalent Amount of up to three hundred and eight million one hundred and thirty thousand Euros
(EUR308,130,000) (the
“Loan”
) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein
contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended and/or restated by the said second supplement dated as of
30 September 2005, the said third supplement dated 13 November 2006, the said fourth supplement dated 21 December 2007 and the said sixth supplement dated 2 April 2009.
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(B)
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The Borrower has requested the Lenders to convert the currency of the Euro Loan from Euro to Dollars by exercising its option to request a currency conversion under the
Original Loan Agreement. Certain amendments are required to the Original Loan Agreement and to certain Security Documents to which the Lenders, the Agent, the Hermes Agent and the Trustee must consent.
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(C)
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The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this seventh supplement to the Original
Loan Agreement (this
“Deed”
) which shall be executed as a deed.
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NOW THIS DEED WITNESSES
as follows:
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1
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Definitions and Construction
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1.1
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In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
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“Letter Agreement”
means the letter dated 14 October 2009
from the Borrower and the Guarantor to the Agent;
“Loan Agreement”
means the Original Loan Agreement as
amended by this Deed;
“New Process Agent”
means EC3 Services Limited whose registered office is presently
at 51 Eastcheap, London EC3M 1JP;
“Norwegian Jewel Owner”
means Norwegian Jewel Limited, the owner of m.v.
“NORWEGIAN JEWEL”;
“Pride of America Owner”
means Pride of America Ship Holding, Inc., the owner
of m.v. “PRIDE OF AMERICA”;
“Second Norwegian Jewel Guarantee”
means the second guarantee and
indemnity dated 2 April 2009 granted by the Norwegian Jewel Owner in favour of the Restructuring Trustee;
“Second Norwegian Jewel Mortgage”
means the second priority Bahamas ship mortgage dated 2 April 2009 granted by
the Norwegian Jewel Owner in favour of the Restructuring Trustee;
“Second Pride of America Guarantee”
means
the second guarantee and indemnity dated 2 April 2009 granted by the Pride of America Owner in favour of the Restructuring Trustee;
“Second Pride of America Mortgage”
means the second preferred US ship mortgage dated 2 April 2009 as amended by the amendment no. 1 dated 29 April 2009 granted by the Pride of
America Owner in favour of the Restructuring Trustee.
2
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1.2
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The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
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2
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Amendment of Original Loan Agreement
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2.1
|
Subject to Clause 3.1, the parties hereto agree that with effect from 14 October 2009 (being the date of the Letter Agreement) the Original Loan Agreement shall be
amended as set out below and (as so amended) will continue to be binding upon each of the parties thereto in accordance with its terms as so amended:
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The definition of
“Equivalent Amount”
be deleted and replaced with:
“
“Equivalent Amount”
means the Dollar equivalent of (i) each amount payable to the Borrower in reimbursement of the Hermes Premium and (ii) the Euro Loan, in each
case, determined at HSBC Bank plc’s spot rate for conversion of Euro to Dollars at respectively 10.00 a.m. and 12.00 p.m. London time two (2) Business Days prior to the relevant Drawdown Date;
”
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2.2
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Each of the Borrower, the Guarantor and the Shareholder hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from
14 October 2009:
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2.2.1
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all references to the Original Loan Agreement in the other Security Documents shall be construed as references to the Loan Agreement and all terms used in such Security
Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
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2.2.2
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the Security Documents shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Loan Agreement, until it has
been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
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2.2.3
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its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
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2.2.4
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its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
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2.3
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Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the other Security Documents shall remain in full force and effect and nothing
herein contained shall relieve the Borrower, the Guarantor, the Shareholder, the Bareboat Charterer or any other Obligor from any of its respective obligations under any such documents.
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3
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3.1
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It is a term of this Deed that the Agent shall receive the following in form and substance satisfactory to it:
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3.1.1
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on the date of this Deed one (1) counterpart of this Deed duly executed by the parties hereto;
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3.1.2
|
by 6.00 p.m. (London time) three (3) Business Days after 14 October 2009:
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(a)
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a written confirmation from the New Process Agent that it will act for each of the Borrower, the Guarantor, the Shareholder, the Bareboat Charterer and the Owners of
the Hermes Vessels (as defined in the Loan Agreement) other than the Borrower as agent for service of process in England in respect of this Deed and the documents to be executed pursuant hereto;
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(b)
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written confirmation from HSBC Bank plc in its capacity as First Mortgagee (as defined in the Second Priority Security Co-ordination Deed for the m.v. “PRIDE OF
AMERICA”) that it consents to the amendment no. 2 to the Second Pride of America Mortgage and to the amendment to the Security Documents (as defined therein);
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(c)
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written confirmation from HSBC Bank plc in its capacity as First Mortgagee (as defined in the Second Priority Security Co-ordination Deed for the m.v. “NORWEGIAN
JEWEL”) that it consents to the amendment to the Security Documents (as defined therein);
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(d)
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the following corporate documents in respect of each of the Borrower, the Guarantor, the Shareholder, the Bareboat Charterer, the Pride of America Owner and the
Norwegian Jewel Owner (together the
“Relevant Parties”
):
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(i)
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Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
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(ii)
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notarially attested secretary’s certificate of each of the Relevant Parties:
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(1)
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attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
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(2)
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giving the names of its present officers and directors;
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4
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(3)
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setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
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(4)
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giving the legal owner of its shares and the number of such shares held;
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(5)
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attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
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(6)
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containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
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or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.2(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
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(iii)
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the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
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(e)
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a Certified Copy of the confirmation from the Pride of America Owner in relation to its obligations and liabilities under the Second Pride of America Guarantee and the
Security Documents (as defined therein) duly executed by the Pride of America Owner;
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(f)
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a Certified Copy of the amendment no. 2 to the Second Pride of America Mortgage, duly executed and confirmation from the Pride of America Owner that the Restructuring
Trustee is authorised to lodge it for registration at the US Coast Guard National Vessel Documentation Center as soon as practicable;
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(g)
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a Certified Copy of the confirmation from the Norwegian Jewel Owner in relation to its obligations and liabilities under the Second Norwegian Jewel Guarantee and the
Security Documents (as defined therein) duly executed by the Norwegian Jewel Owner;
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(h)
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evidence the Hermes Agent has made or will make a notification in respect of the Hermes Cover reflecting the currency conversion of the Euro Loan from Euro to Dollars
and the amendments to the documents referred to therein; and
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5
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(i)
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agreement to the issue of such favourable written legal opinions including in respect of Bermuda, Delaware, the United States of America and England in such form as the
Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law.
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3.2
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If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit
the amendment of the Original Loan Agreement hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen
(14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement as aforesaid shall not be construed as a waiver of the Agent’s right to receive the documents or evidence
as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
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4
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Representations and Warranties
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4.1
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Each of the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee
that:
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4.1.1
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it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
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4.1.2
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this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
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4.1.3
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its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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its constitutional documents; or
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(c)
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any agreement or document to which it is a party or which is binding upon it or any of its assets,
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nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee;
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4.1.4
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except for the recording of the amendment no. 2 to the Second Pride of America Mortgage with the United States Coast Guard National Vessel
Documentation Center, all authorisations, approvals, consents, licences,
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6
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exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and
each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect;
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4.1.5
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all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading;
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4.1.6
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it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed; and
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4.1.7
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no Event of Default had occurred or was continuing on 14 October 2009 or the date of this Deed and no Event of Default shall have occurred or be continuing on the
Relevant Currency Conversion Date (as defined in the Letter Agreement).
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5.1
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The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand of the Agent on a full
indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes
Agent and/or the Trustee in respect of or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
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5.2
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The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Trustee and the Lenders on demand of the Agent on a full indemnity basis for
all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Trustee and/or the Lenders in respect of, or in connection with
the enforcement of, or the preservation of any rights under this Deed.
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Each
of the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a
form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes
Agent and/or the Trustee the full benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
7
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
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8.1
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Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower, the Guarantor, the Shareholder and/or the Bareboat Charterer
pursuant to this Deed shall (unless the Borrower, the Guarantor, the Shareholder or the Bareboat Charterer has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower, the
Guarantor, the Shareholder and/or the Bareboat Charterer at c/o/ 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy
shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United States of America (marked for the attention of Mr Steven Martinez). Any notice, demand or other communication to
be made or delivered by the Borrower, the Guarantor, the Shareholder or the Bareboat Charterer pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has by fifteen (15) days’ written notice to the Borrower, the
Guarantor, the Shareholder or the Bareboat Charterer specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
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8.2
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Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department)
with a copy to the Investors c/o Apollo Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steven Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it
from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower,
the Guarantor, the Shareholder or the Bareboat Charterer shall be signed by the person or persons authorised in writing by the Borrower, the Guarantor, the Shareholder or the Bareboat Charterer (as the case may be) and whose signature appears on the
list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that
purpose by the Agent, the Hermes Agent or the Trustee to the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer.
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8.3
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The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
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This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
8
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10.1
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The courts of England have exclusive jurisdiction to settle any dispute:
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10.1.1
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arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
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10.1.2
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relating to any non-contractual obligations arising from or in connection with this Deed,
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(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
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10.2
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None of the Borrower, the Guarantor, the Shareholder or the Bareboat Charterer may, without the Agent’s prior written consent, terminate the appointment of the New
Process Agent; if the New Process Agent resigns or its appointment ceases to be effective, the Borrower, the Guarantor, the Shareholder and/or the Bareboat Charterer (as the case may be) shall within fourteen (14) days appoint a company which
has premises in London and has been approved by the Agent to act as the Borrower’s, the Guarantor’s, the Shareholder’s and/or the Bareboat Charterer’s (as the case may be) process agent with unconditional authority to receive and
acknowledge service on behalf of the Borrower, the Guarantor, the Shareholder and/or the Bareboat Charterer of all process or other documents connected with proceedings in the English courts which relate to this Deed.
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10.3
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For the purpose of securing its obligations under Clause 10.2, each of the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer irrevocably agrees that,
if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s, the
Guarantor’s, the Shareholder’s or the Bareboat Charterer’s (as the case may be) process agent in England with the unconditional authority described in Clause 10.2.
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10.4
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No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower, the Guarantor, the Shareholder or
the Bareboat Charterer (as the case may be) of the service of any process or to forward any process to the Borrower, the Guarantor, the Shareholder or the Bareboat Charterer (as the case may be)) shall invalidate any proceedings or judgment.
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10.5
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Each of the Borrower, the Guarantor, the Shareholder and the Bareboat Charterer appoints in the case of the courts of England the New Process Agent to receive, for and
on its behalf, service of process in England of any legal proceedings with respect to this Deed.
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9
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10.6
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A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower, the Guarantor, the Shareholder
and/or the Bareboat Charterer (as the case may be) and may be enforced without review in any other jurisdiction.
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10.7
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Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
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IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Daniel S. Farkas
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)
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for and on behalf of
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)
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/s/ Daniel S. Farkas
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PRIDE OF HAWAII, INC.
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)
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in the presence of:
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)
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/s/ Lincoln M. Vidal
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Lincoln M. Vidal
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7665 Corporate Center Drive
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Miami, FL 33126
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Steve Martinez
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)
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for and on behalf of
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)
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/s/ Steve Martinez
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NCL CORPORATION LTD.
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)
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in the presence of:
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)
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/s/ Jared Silberhorn
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Daniel S. Farkas
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)
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for and on behalf of
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)
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/s/ Daniel S. Farkas
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NCL (BAHAMAS) LTD.
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)
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in the presence of:
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)
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/s/ Lincoln M. Vidal
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Lincoln M. Vidal
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7665 Corporate Center Drive
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Miami, FL 33126
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SIGNED SEALED
and
DELIVERED
as a
DEED
|
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)
|
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by Daniel S. Farkas
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)
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for and on behalf of
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)
|
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/s/ Daniel S. Farkas
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NCL AMERICA HOLDINGS, INC.
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)
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in the presence of:
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)
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/s/ Lincoln M. Vidal
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Lincoln M. Vidal
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7665 Corporate Center Drive
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Miami, FL 33126
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10
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SIGNED SEALED
and
DELIVERED
as a
DEED
|
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)
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by Kate Mary Higgins
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)
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for and on behalf of
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)
|
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/s/ Kate Mary Higgins
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COMMERZBANK AKTIENGESELLSCHAFT
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)
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as a Lender
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)
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in the presence of:
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)
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/s/ Charlotte Elizabeth (Illegible)
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Charlotte Elizabeth (Illegible)
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Stephenson Harwood
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London EC4M 8SH
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SIGNED SEALED
and
DELIVERED
as a
DEED
|
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)
|
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by Kate Mary Higgins
|
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)
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for and on behalf of
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)
|
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/s/ Kate Mary Higgins
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KFW
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)
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in the presence of:
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)
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/s/ Charlotte Elizabeth (Illegible)
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|
Charlotte Elizabeth (Illegible)
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|
Stephenson Harwood
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London EC4M 8SH
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|
|
|
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|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Kate Mary Higgins
|
|
)
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|
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|
for and on behalf of
|
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)
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|
/s/ Kate Mary Higgins
|
|
DnB NOR BANK ASA
|
|
)
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|
|
|
in the presence of:
|
|
)
|
|
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|
/s/ Charlotte Elizabeth (Illegible)
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Charlotte Elizabeth (Illegible)
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Stephenson Harwood
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London EC4M 8SH
|
|
|
|
|
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|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Kate Mary Higgins
|
|
)
|
|
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|
for and on behalf of
|
|
)
|
|
/s/ Kate Mary Higgins
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
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|
GIROZENTRALE
|
|
)
|
|
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|
in the presence of:
|
|
)
|
|
|
|
/s/ Charlotte Elizabeth (Illegible)
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|
Charlotte Elizabeth (Illegible)
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Stephenson Harwood
|
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|
London EC4M 8SH
|
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|
|
|
|
|
|
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|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Kate Mary Higgins
|
|
)
|
|
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|
for and on behalf of
|
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)
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|
/s/ Kate Mary Higgins
|
|
CALYON
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|
)
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|
in the presence of:
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|
)
|
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/s/ Charlotte Elizabeth (Illegible)
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Charlotte Elizabeth (Illegible)
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Stephenson Harwood
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London EC4M 8SH
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11
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SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
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|
by Ed Bullen
|
|
)
|
|
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|
for and on behalf of
|
|
)
|
|
/s/ Ed Bullen
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|
HSBC BANK PLC
|
|
)
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|
as the Agent, the Trustee and a Lender
|
|
)
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|
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in the presence of:
|
|
)
|
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|
/s/ J. Gaston
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|
J. Gaston
|
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|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by Kate Mary Higgins
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
/s/ Kate Mary Higgins
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
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)
|
|
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|
as the Hermes Agent
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)
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in the presence of:
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)
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/s/ Charlotte Elizabeth (Illegible)
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Charlotte Elizabeth (Illegible)
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Stephenson Harwood
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London
EC4M
8SH
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12
Schedule 1
The Agent, the Hermes Agent, the Trustee,
the Restructuring Trustee and
the Lenders
Name and address
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr
Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
13
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Ness 7-9
20457 Hamburg
Federal Republic of Germany
Fax: +49 40 3683 4068
Attn: Mr Stefan
Kuch/Mr Martin Hugger/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan
Marshall
Email: alan.p.marshall@hsbcib.com
K
FW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef
Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
14
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Ms Amra Koluder
Email: amra.koluder@dnbnor.no
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511
361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CALYON
Taunusanlage 14
60325 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Ms Angelika
Schönegger-Wenzel
Email: angelika.schoenegger-wenzel@de.calyon.com
with a copy to:
CALYON ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence
Yuen/Ms Iris Lai
Email: terence.yuen@hk.calyon.com/iris.lai@hk.calyon.com
15
Exhibit 10.26
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 22 JULY 2010
PRIDE OF HAWAII, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
EIGHTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
SECURED LOAN AGREEMENT
dated 20 April 2004 for the equivalent amount in United States Dollars
of up to EUR308,130,000
pre- and post delivery finance for
“NORWEGIAN JADE”
a luxury cruise vessel with 1,188 passenger cabins
being hull no S.668 at the yard of Meyer Werft GmbH
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/42-02376/44-01535/45-01869/46-01272/47-00187/47-02888/48-01494/49-00640
CONTENTS
|
|
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Page
|
|
|
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|
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1
|
|
Definitions and Construction
|
|
|
2
|
|
|
|
|
|
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2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
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2
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3
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Conditions Precedent
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3
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4
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Representations and Warranties
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6
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5
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Fee and Expenses
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7
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6
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Further Assurance
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7
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7
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Counterparts
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8
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8
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Notices
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8
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9
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Governing Law
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8
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10
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Jurisdiction
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9
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|
|
Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
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13
|
|
|
|
|
|
|
Schedule 2
|
|
Amendment of Original Loan Agreement
|
|
|
16
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|
Schedule 3
|
|
Amendment of Original Guarantee
|
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19
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|
Schedule 4
|
|
Repayment Schedule calculated using the Application of Proceeds Formulation
|
|
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20
|
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|
|
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Schedule 5
|
|
Repayment Schedule for the purpose of calculating the amount of the Margin payable
|
|
|
21
|
|
EIGHTH SUPPLEMENTAL DEED
DATED 22 JULY 2010
BETWEEN:
|
(1)
|
PRIDE OF HAWAII, LLC
, (formerly known as Ship Ventures Inc.) of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of
America as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(4)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS:
|
(A)
|
By a loan agreement dated 20 April 2004 as amended and/or restated by a first supplemental deed thereto dated 25 October 2004, a second supplemental deed
thereto dated as of 30 September 2005, a third supplemental deed thereto dated 13 November 2006, a fourth supplemental deed thereto dated 21 December 2007, a fifth supplemental deed thereto dated 10 February 2008, a sixth
supplemental deed thereto dated 2 April 2009 and a seventh supplemental deed thereto dated 19 October 2009 entered into between the Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes
Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan Agreement”
), the Lenders granted to the Borrower a secured loan in the Equivalent Amount of up to three
hundred and eight million one hundred and thirty thousand Euros (EUR308,130,000) (the
“Loan”
) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the
Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended and/or
restated by the said second supplement dated as of 30 September 2005, the said third supplement dated 13 November 2006, the said fourth supplement dated 21 December 2007 and the said sixth supplement dated 2 April 2009 (the
“Original Guarantee”
).
|
|
(B)
|
The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to the amendment of the definition of Permitted
Indebtedness (as defined in the Original Loan Agreement), to enable any member(s) of the NCLC Group to order the New Vessels (as defined in the Loan Agreement) (or either of them), and to allow the Guarantor to pay dividends after the listing of the
ordinary capital stock of the Guarantor on an Approved Stock Exchange (as defined in the Original Guarantee).
|
|
(C)
|
The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this eighth supplement to the Original
Loan Agreement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“Application of Proceeds Formulation”
means the formulation set out
in Clause 3.3;
“Effective Date”
means the date on which the conditions precedent set out in Clause 3.1
are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as
amended by this Deed;
“Maximum Amount of the Delayed Principal Amount”
shall have the meaning to be specified
for such term in the Loan Agreement; and
“New Process Agent”
means EC3 Services Limited whose registered
office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date:
|
|
|
2.1.1
|
the Original Loan Agreement and the Original Guarantee shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 or
Schedule 3 to this Deed (as the case may be) had been inserted or amended to read as set out in the second column of Schedule 2 or Schedule 3 to this Deed (as the case may be);
|
|
|
2.1.2
|
schedule 10 to the Original Loan Agreement had been deleted and substituted with Schedule 4 to this Deed; and
|
2
|
|
2.1.3
|
a new schedule 11 had been added to the Original Loan Agreement in the form of Schedule 5 to this Deed.
|
|
|
2.2
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from the Effective Date:
|
|
|
2.2.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.2.2
|
the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Loan
Agreement, until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
The amendment of the Original Loan Agreement and the Original Guarantee provided for in Clause 2 is conditional upon and shall not be effective unless and until the
Agent has received the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto;
|
|
|
(c)
|
evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
|
3
|
|
(d)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or
shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
4
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Cash Sweep Credit Facilities have been cancelled and/or prepaid pro rata based on the Maximum Amount of the Delayed Principal Amount (as defined in
the facility agreement for each Cash Sweep Credit Facility) for each Cash Sweep Credit Facility (or, if applicable, tranche thereof) by an aggregate amount of one hundred million Dollars (USD100,000,000);
|
|
|
3.1.3
|
a Certified Copy of a confirmation in respect of each of the Hermes Vessel Owner Second Guarantees duly executed by the owners of the Hermes Vessels other than the
Borrower;
|
|
|
3.1.4
|
a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments to the Original Loan Agreement and the Original Guarantee
contemplated by this Deed;
|
|
|
3.1.5
|
evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each NCLC Group Credit Facility have
been satisfied; and
|
|
|
3.1.6
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware, the United States of America and England in
such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2).
|
|
3.2
|
If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit
the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence
to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the
Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
|
|
|
3.3
|
The amount of the Loan to be prepaid pursuant to Clause 3.1.2 shall constitute a prepayment pursuant to clause 4.10 of the Loan Agreement and such prepayment and any
further prepayments to be made pursuant to clause 4.10 of the Loan Agreement shall be applied:
|
|
|
3.3.1
|
entirely to the Delayed Principal Amount; and
|
|
|
3.3.2
|
in forward order of maturity with respect to the dates of the Revised Repayments.
|
5
For illustrative purposes:
|
|
(a)
|
any prepayment made pursuant to Clause 3.1.2 shall be applied to the repayment of the Delayed Principal Amount in an amount equal to the difference between the amounts
in the third column (
Originally Scheduled Repayments
) and the fifth column (
Revised Repayments
) of schedule 10 to the Original Loan Agreement of each Revised Repayment i.e. in the amount of USD8,266,294.56 from 21 April 2014;
|
|
|
(b)
|
a revised repayment schedule (schedule 10 to the Loan Agreement and Schedule 4 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 and the amount of each Revised Repayment to be made after such prepayment; and
|
|
|
(c)
|
a revised repayment schedule (schedule 11 to the Loan Agreement and Schedule 5 to this Deed) will show the application of the amounts of the Loan to be prepaid pursuant
to Clause 3.1.2 in so far as they relate to the calculation of the amount of the Margin to be paid after such prepayment.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Trustee;
|
|
4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
|
6
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower shall pay to each of the Lenders (directly or through the Agent) on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the NCLC Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Loan Agreement,
the Loan Agreement or the Agency and Trust Deed to the contrary, no Lender shall be required to share with the other Lenders, the Agent, the Hermes Agent and/or the Trustee any such handling/work fee received.
|
|
|
5.2
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.3
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights, powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
7
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and
shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and
shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
8
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
9
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
PRIDE OF HAWAII, LLC
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London, EC4M 8SH
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NCL CORPORATION LTD.
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as a Lender
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
10
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
KFW
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
DnB NOR BANK ASA
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
|
|
GIROZENTRALE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
CREDIT AGRICOLE CORPORATE
|
|
)
|
|
AND INVESTMENT BANK
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
11
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
HSBC BANK PLC
|
|
)
|
|
as the Agent, the Trustee and a Lender
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Z. M. Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Z. M. Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as the Hermes Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
As Above
|
|
|
12
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
|
|
Name and address
|
|
|
|
Agent
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
|
|
|
|
|
Hermes Agent
|
|
|
|
COMMERZBANK
AKTIENGESELLSCHAFT
|
|
Corporate Banking
|
|
Structured Export and Trade Finance
|
|
Kaiserplatz
|
|
60261 Frankfurt am Main
|
|
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
|
|
|
|
|
Trustee
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
13
|
|
|
|
|
Restructuring Trustee
|
|
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
|
|
|
|
|
Lenders
|
|
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
Global Shipping
|
|
Domstrasse 18
|
|
20095 Hamburg
|
|
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Martin Hugger/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
|
|
|
|
|
HSBC BANK PLC
|
|
Project and Export Finance
|
|
8 Canada Square
|
|
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
|
|
|
|
|
KFW
|
|
Palmengartenstrasse 5-9
|
|
60325 Frankfurt am Main
|
|
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
14
|
|
|
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder
|
|
Email:
|
|
amra.koluder@dnbnor.no
|
|
|
|
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
|
Friedrichswall 10
|
|
30159 Hannover
|
|
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
|
|
Taunusanlage 14
|
|
60325 Frankfurt am Main
|
|
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 74221 197
|
|
Attn:
|
|
Mr Stephan Bachmann
|
|
Email:
|
|
stephan.bachmann@ca-cib.com
|
with a copy to:
|
|
|
|
|
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
|
Fax:
|
|
+852 2868 1448
|
|
Attn:
|
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
15
Schedule 2
Amendment of Original Loan Agreement
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Application of
Proceeds Formulation”
|
|
means the following formulation for the application of any amount of the Loan to be prepaid pursuant to Clause 4.10:
(i) entirely to the Delayed Principal Amount; and
(ii) in respect
of any prepayment of the Loan to be made pursuant to clause 3.1.2 of the Eighth Supplemental Deed, in forward order of maturity with respect to the dates of the Revised Repayments; and
(iii) in respect of
any other prepayment of the Loan to be made pursuant to Clause 4.10, in forward order of maturity with respect to the dates of the Revised Repayments, subject to the approval of all of the Lenders in respect of each such prepayment and, if the
approval of all of the Lenders is not obtained, in inverse order of maturity with respect to the dates of the Revised Repayments;
|
|
|
|
|
Clause 1.1, definition of
“Eighth Supplemental
Deed”
|
|
means the eighth supplemental deed dated 2010 to this
Agreement;
|
|
|
|
|
Clause 1.1, definition of
“Margin”
(paragraph
(ii)(b))
|
|
(ii) thereafter two point seven five per cent (2.75%) per
annum;
notwithstanding the provisions of the penultimate paragraph of
Clause 4.10 (as more particularly described in the final paragraph of Clause 4.10);
|
|
|
|
|
Clause 1.1, definition
(new) of
“Maximum
Amount of the Delayed
Principal Amount”
|
|
means USD74,396,650.89;
|
|
|
|
|
Clause 1.1, definition
(new) of
“New Vessels”
|
|
means the two (2) newbuild cruise vessels each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of
passenger cabins or gross or net tonnage, not on order by a member of the NCLC Group as of the Effective Date (as defined in the Eighth Supplemental Deed);
|
16
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition of
“Permitted
Indebtedness”
|
|
means (i) any monies borrowed or raised other than from any direct or indirect shareholder of the Borrower prior to the date on which the last of the Fifth Supplemental Deed and the
Amendment Documents have been signed by all the parties thereto and notified by the Borrower to the Agent prior to such date; (ii) the Letter of Credit Facilities; (iii) Permitted Refinancing Indebtedness and (iv) one or more financing arrangements
entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term sheet(s) related to such financing arrangement(s) having been disclosed by the Borrower to Hermes prior to their execution by the
Borrower or any other member of the NCLC Group and such financing arrangement(s) being on terms satisfactory to Hermes. The term sheet(s) will be disclosed to Hermes on the basis that the terms of such financing arrangement(s) shall be deemed
satisfactory unless Hermes notifies the Borrower to the contrary within five (5) business days (in the city in which Hermes has its office) of receipt of the term sheet(s);
|
|
|
|
|
Clause 1.1, definition
(new) of
“Total
Delayed Principal
Amount”
|
|
means USD280,561,651.28, being the aggregate of the Maximum Amount of the Delayed Principal Amount (as defined in the facility agreement for each Cash Sweep Credit Facility) for
each Cash Sweep Credit Facility (or, if applicable, tranche thereof);
|
|
|
|
|
Clause 4.1
|
|
On giving at least thirty (30) days’ prior notice to the Agent, the Borrower may on the last day of a Pre-Delivery Interest Period or an Interest Period prepay (without premium
or penalty, subject to Clause 4.8) the whole or any relevant part of the Loan (but if in part in an amount of five million Dollars (USD5,000,000) or the equivalent amount in Euro (as the case may be) or an integral multiple thereof). In the case of
a prepayment of part of the Loan, the proportion of that part payable in Dollars or Euro (as the case may be) shall correspond to the proportion of the Loan denominated in that currency at the prepayment date. Notwithstanding anything to the
contrary in this Clause 4.1, any prepayment made before an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid shall be governed by Clause 4.10.
|
|
|
|
|
Clause 4.7 (third
sentence)
|
|
Subject to Clause 4.9 and Clause 4.10, each prepayment under this Agreement shall be applied in satisfaction of the Borrower’s remaining obligations under Clause 3 in inverse
chronological order and Schedule 10 and Schedule 11 shall be recalculated and agreed in accordance with Clause 4.10.
|
|
|
|
|
Clause 4.10
|
|
Notwithstanding anything to the contrary in this Agreement, other than in respect of ordinary refinancings, no voluntary prepayment of the Loan may be made before an amount equal to
the Total Delayed Principal Amount has been cancelled and/or prepaid and/or repaid unless pro rata prepayments, reductions and/or cancellations of the other Cash Sweep Credit Facilities are to be made. The prepayment, reduction and/or cancellation
to be made under each Cash Sweep Credit Facility
|
17
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
|
|
shall be calculated based on each Cash Sweep Credit Facility’s remaining outstanding Delayed Principal Amount (as defined in
this Agreement in respect of the Loan and as defined in the relevant facility agreement in respect of each of the other Cash Sweep Credit Facilities) as of the date of the prepayment, reduction and/or cancellation, save for any prepayment to be made
pursuant to the Eighth Supplemental Deed. Each such outstanding Delayed Principal Amount or Maximum Amount of the Delayed Principal Amount (as the case may be), to the extent it is not already denominated in Dollars, shall be converted into Dollars
on the date falling ten (10) Business Days prior to the relevant prepayment, reduction and/or cancellation date at the rate which appears on the Reuters Page ECB37 at 1.30 p.m. London time on that date, for the purposes of such calculation.
Subject to Clause 4.8 and the rest of this Clause 4.10, with respect to the Loan on the relevant date of measurement, any prepayment made before an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or
prepaid and/or repaid shall be applied in accordance with the Application of Proceeds Formulation. As at the Effective Date (as defined in the Eighth Supplemental Deed), Schedule 10 contains a repayment schedule calculated following the prepayment
of an amount of the Loan as more particularly described in clause 3.1.2 of the Eighth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 10 shall be recalculated using
the Application of Proceeds Formulation or in accordance with Clause 4.7 (as the case may be), shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a
part of this Agreement.
Notwithstanding anything to the contrary,
paragraph (ii) of the definition of Margin shall continue to apply as if the amount of each Revised Repayment or Originally Scheduled Repayment prepaid as described in the last three (3) sentences of the previous paragraph of this Clause 4.10
or in Clause 4.1 had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised Repayment or Originally Scheduled Repayment prior to any voluntary prepayment made under this Clause 4.10
pursuant to the Eighth Supplemental Deed. As at the Effective Date (as defined in the Eighth Supplemental Deed), Schedule 11 contains a repayment schedule calculated following the prepayment of an amount of the Loan as more particularly described in
clause 3.1.2 of the Eighth Supplemental Deed, on the basis that the amount of each such Revised Repayment prepaid had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised
Repayment prior to any voluntary prepayment made under this Clause 4.10 pursuant to the Eighth Supplemental Deed. Following any further voluntary prepayment of the Loan pursuant to this Clause 4.10 or Clause 4.1, Schedule 11 shall be recalculated on
the basis described in this paragraph of this Clause 4.10, shall be agreed between the Agent and the Borrower as soon as possible after the prepayment date and shall, from such prepayment date, be deemed to be a part of this
Agreement.
|
18
Schedule 3
Amendment of Original Guarantee
|
|
|
|
|
Clause
|
|
Amendment
|
|
Clause 10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Loan Agreement or
this Deed.
|
|
|
|
|
Clause 10.10 (new)
|
|
The Guarantor shall not (and will procure that no other company in the NCLC Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is
available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing arrangements.
|
|
|
|
|
Clause 11.3
|
|
The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other
distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the NCLC Group, (ii) the Guarantor may pay dividends in respect of tax liability to each relevant
jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the NCLC Group being treated as a pass-through entity
or attributable to any member of the NCLC Group, and (iii) after the later of (x) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange and (y) an amount equal to the Total Delayed Principal Amount having been
prepaid and/or repaid, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such
payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend and (II) after giving effect to such dividend
the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 of the Guarantee is less than 5.50:1.00. The Agent shall
use the Application of Proceeds Formulation to determine whether an amount equal to the Maximum Amount of the Delayed Principal Amount has been prepaid and/or repaid.
The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions
will be received promptly by the Guarantor directly or indirectly from the Borrower’s member(s) or shareholder(s) (if such member or shareholder is not the Guarantor) by way of dividend.
|
19
Schedule 4
Repayment Schedule calculated using the Application of Proceeds Formulation*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
20-Apr-10
|
|
|
297,586,603.60
|
|
|
|
18,599,162.72
|
|
|
|
55,797,488.17
|
|
|
|
|
|
|
|
353,384,091.77
|
|
|
|
297,586,603.60
|
|
|
|
18,599,162.72
|
|
|
|
55,797,488.17
|
|
|
|
|
|
|
|
353,384,091.77
|
|
|
Amendment
Prepayment
|
|
|
297,586,603.60
|
|
|
|
|
|
|
|
55,797,488.17
|
|
|
|
|
|
|
|
353,384,091.77
|
|
|
|
297,586,603.60
|
|
|
|
|
|
|
|
29,280,446.18
|
|
|
|
26,517,041.99
|
|
|
|
326,867,049.78
|
|
|
19-Oct-10
|
|
|
278,987,440.88
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
—
|
|
|
|
353,384,091.77
|
|
|
|
278,987,440.88
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
—
|
|
|
|
326,867,049.78
|
|
|
19-Apr-11
|
|
|
260,388,278.16
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
334,784,929.05
|
|
|
|
260,388,278.16
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
308,267,887.06
|
|
|
19-Oct-11
|
|
|
241,789,115.44
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
316,185,766.33
|
|
|
|
241,789,115.44
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
289,668,724.34
|
|
|
19-Apr-12
|
|
|
223,189,952.72
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
297,586,603.61
|
|
|
|
223,189,952.72
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
271,069,561.62
|
|
|
19-Oct-12
|
|
|
204,590,790.00
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
278,987,440.89
|
|
|
|
204,590,790.00
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
252,470,398.90
|
|
|
19-Apr-13
|
|
|
185,991,627.28
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
260,388,278.17
|
|
|
|
185,991,627.28
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
233,871,236.18
|
|
|
21-Oct-13
|
|
|
167,392,464.56
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
241,789,115.45
|
|
|
|
167,392,464.56
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
215,272,073.46
|
|
|
21-Apr-14
|
|
|
148,793,301.84
|
|
|
|
18,599,162.72
|
|
|
|
66,130,356.33
|
|
|
|
26,865,457.28
|
|
|
|
214,923,658.17
|
|
|
|
148,793,301.84
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
196,672,910.74
|
|
|
20-Oct-14
|
|
|
130,194,139.12
|
|
|
|
18,599,162.72
|
|
|
|
57,864,061.77
|
|
|
|
26,865,457.28
|
|
|
|
188,058,200.89
|
|
|
|
130,194,139.12
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
178,073,748.02
|
|
|
20-Apr-15
|
|
|
111,594,976.40
|
|
|
|
18,599,162.72
|
|
|
|
49,597,767.21
|
|
|
|
26,865,457.28
|
|
|
|
161,192,743.61
|
|
|
|
111,594,976.40
|
|
|
|
18,599,162.72
|
|
|
|
47,879,608.90
|
|
|
|
18,599,162.72
|
|
|
|
159,474,585.30
|
|
|
19-Oct-15
|
|
|
92,995,813.68
|
|
|
|
18,599,162.72
|
|
|
|
41,331,472.65
|
|
|
|
26,865,457.28
|
|
|
|
134,327,286.33
|
|
|
|
92,995,813.68
|
|
|
|
18,599,162.72
|
|
|
|
41,331,472.65
|
|
|
|
25,147,298.97
|
|
|
|
134,327,286.33
|
|
|
19-Apr-16
|
|
|
74,396,650.96
|
|
|
|
18,599,162.72
|
|
|
|
33,065,178.09
|
|
|
|
26,865,457.28
|
|
|
|
107,461,829.05
|
|
|
|
74,396,650.96
|
|
|
|
18,599,162.72
|
|
|
|
33,065,178.09
|
|
|
|
26,865,457.28
|
|
|
|
107,461,829.05
|
|
|
19-Oct-16
|
|
|
55,797,488.24
|
|
|
|
18,599,162.72
|
|
|
|
24,798,883.53
|
|
|
|
26,865,457.28
|
|
|
|
80,596,371.77
|
|
|
|
55,797,488.24
|
|
|
|
18,599,162.72
|
|
|
|
24,798,883.53
|
|
|
|
26,865,457.28
|
|
|
|
80,596,371.77
|
|
|
19-Apr-17
|
|
|
37,198,325.52
|
|
|
|
18,599,162.72
|
|
|
|
16,532,588.97
|
|
|
|
26,865,457.28
|
|
|
|
53,730,914.49
|
|
|
|
37,198,325.52
|
|
|
|
18,599,162.72
|
|
|
|
16,532,588.97
|
|
|
|
26,865,457.28
|
|
|
|
53,730,914.49
|
|
|
21-Oct-17
|
|
|
18,599,162.80
|
|
|
|
18,599,162.72
|
|
|
|
8,266,294.41
|
|
|
|
26,865,457.28
|
|
|
|
26,865,457.21
|
|
|
|
18,599,162.80
|
|
|
|
18,599,162.72
|
|
|
|
8,266,294.41
|
|
|
|
26,865,457.28
|
|
|
|
26,865,457.21
|
|
|
19-Apr-18
|
|
|
—
|
|
|
|
18,599,162.80
|
|
|
|
—
|
|
|
|
26,865,457.21
|
|
|
|
—
|
|
|
|
—
|
|
|
|
18,599,162.80
|
|
|
|
—
|
|
|
|
26,865,457.21
|
|
|
|
—
|
|
|
*
|
Facility converted to USD
|
20
Schedule 5
Repayment Schedule for the purpose of calculating the amount of the Margin payable*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
Ordinary Principal
Amount
|
|
|
Originally
Scheduled
Repayments
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Repayments
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
20-Apr-10
|
|
|
297,586,603.60
|
|
|
|
18,599,162.72
|
|
|
|
55,797,488.17
|
|
|
|
—
|
|
|
|
353,384,091.77
|
|
|
|
297,586,603.60
|
|
|
|
18,599,162.72
|
|
|
|
55,797,488.17
|
|
|
|
—
|
|
|
|
353,384,091.77
|
|
|
Amendment
Prepayment
|
|
|
297,586,603.60
|
|
|
|
—
|
|
|
|
55,797,488.17
|
|
|
|
—
|
|
|
|
353,384,091.77
|
|
|
|
279,228,651.46
|
|
|
|
|
|
|
|
47,638,398.31
|
|
|
|
26,517,041.99
|
|
|
|
326,867,049.78
|
|
|
19- Oct-10
|
|
|
278,987,440.88
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
—
|
|
|
|
353,384,091.77
|
|
|
|
260,629,488.74
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
—
|
|
|
|
326,867,049.78
|
|
|
19-Apr-11
|
|
|
260,388,278.16
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
334,784,929.05
|
|
|
|
242,030,326.02
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
308,267,887.06
|
|
|
19-Oct-11
|
|
|
241,789,115.44
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
316,185,766.33
|
|
|
|
223,431,163.30
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
289,668,724.34
|
|
|
19-Apr-12
|
|
|
223,189,952.72
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
297,586,603.61
|
|
|
|
204,832,000.58
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
271,069,561.62
|
|
|
19-Oct-12
|
|
|
204,590,790.00
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
278,987,440.89
|
|
|
|
186,232,837.86
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
252,470,398.90
|
|
|
19-Apr-13
|
|
|
185,991,627.28
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
260,388,278.17
|
|
|
|
167,633,675.14
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
233,871,236.18
|
|
|
21-Oct-13
|
|
|
167,392,464.56
|
|
|
|
18,599,162.72
|
|
|
|
74,396,650.89
|
|
|
|
18,599,162.72
|
|
|
|
241,789,115.45
|
|
|
|
149,034,512.42
|
|
|
|
18,599,162.72
|
|
|
|
66,237,561.03
|
|
|
|
18,599,162.72
|
|
|
|
215,272,073.46
|
|
|
21-Apr-14
|
|
|
148,793,301.84
|
|
|
|
18,599,162.72
|
|
|
|
66,130,356.33
|
|
|
|
26,865,457.28
|
|
|
|
214,923,658.17
|
|
|
|
136,158,169.01
|
|
|
|
18,599,162.72
|
|
|
|
60,514,741.73
|
|
|
|
18,599,162.72
|
|
|
|
196,672,910.74
|
|
|
20-Oct-14
|
|
|
130,194,139.12
|
|
|
|
18,599,162.72
|
|
|
|
57,864,061.77
|
|
|
|
26,865,457.28
|
|
|
|
188,058,200.89
|
|
|
|
123,281,825.60
|
|
|
|
18,599,162.72
|
|
|
|
54,791,922.42
|
|
|
|
18,599,162.72
|
|
|
|
178,073,748.02
|
|
|
20-Apr-15
|
|
|
111,594,976.40
|
|
|
|
18,599,162.72
|
|
|
|
49,597,767.21
|
|
|
|
26,865,457.28
|
|
|
|
161,192,743.61
|
|
|
|
110,405,482.18
|
|
|
|
18,599,162.72
|
|
|
|
49,069,103.11
|
|
|
|
18,599,162.72
|
|
|
|
159,474,585.30
|
|
|
19-Oct-15
|
|
|
92,995,813.68
|
|
|
|
18,599,162.72
|
|
|
|
41,331,472.65
|
|
|
|
26,865,457.28
|
|
|
|
134,327,286.33
|
|
|
|
92,995,813.68
|
|
|
|
18,599,162.72
|
|
|
|
41,331,472.65
|
|
|
|
25,147,298.97
|
|
|
|
134,327,286.33
|
|
|
19-Apr-16
|
|
|
74,396,650.96
|
|
|
|
18,599,162.72
|
|
|
|
33,065,178.09
|
|
|
|
26,865,457.28
|
|
|
|
107,461,829.05
|
|
|
|
74,396,650.96
|
|
|
|
18,599,162.72
|
|
|
|
33,065,178.09
|
|
|
|
26,865,457.28
|
|
|
|
107,461,829.05
|
|
|
19-Oct-16
|
|
|
55,797,488.24
|
|
|
|
18,599,162.72
|
|
|
|
24,798,883.53
|
|
|
|
26,865,457.28
|
|
|
|
80,596,371.77
|
|
|
|
55,797,488.24
|
|
|
|
18,599,162.72
|
|
|
|
24,798,883.53
|
|
|
|
26,865,457.28
|
|
|
|
80,596,371.77
|
|
|
19-Apr-17
|
|
|
37,198,325.52
|
|
|
|
18,599,162.72
|
|
|
|
16,532,588.97
|
|
|
|
26,865,457.28
|
|
|
|
53,730,914.49
|
|
|
|
37,198,325.52
|
|
|
|
18,599,162.72
|
|
|
|
16,532,588.97
|
|
|
|
26,865,457.28
|
|
|
|
53,730,914.49
|
|
|
21-Oct-17
|
|
|
18,599,162.80
|
|
|
|
18,599,162.72
|
|
|
|
8,266,294.41
|
|
|
|
26,865,457.28
|
|
|
|
26,865,457.21
|
|
|
|
18,599,162.80
|
|
|
|
18,599,162.72
|
|
|
|
8,266,294.41
|
|
|
|
26,865,457.28
|
|
|
|
26,865,457.21
|
|
|
19-Apr-18
|
|
|
—
|
|
|
|
18,599,162.80
|
|
|
|
—
|
|
|
|
26,865,457.21
|
|
|
|
—
|
|
|
|
—
|
|
|
|
18,599,162.80
|
|
|
|
—
|
|
|
|
26,865,457.21
|
|
|
|
—
|
|
|
*
|
Facility converted to USD
|
21
Exhibit 10.27
DATED 18 NOVEMBER 2010
PRIDE OF HAWAII, LLC
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
HSBC BANK PLC
(as agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Hermes agent)
HSBC BANK PLC
(as trustee)
NINTH SUPPLEMENTAL DEED IN RELATION TO
(AMONG OTHER THINGS) SECURED LOAN AGREEMENT
dated 20 April 2004 for
the equivalent amount in United States Dollars
of up to EUR308,130,000
pre- and post delivery finance for
“NORWEGIAN JADE”
a luxury cruise vessel with 1,188 passenger
cabins
being hull no S.668 at the yard of Meyer Werft GmbH
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/42-02376/44-01535/45-01869/46-01272/47-00187/47-02888/48-01494/49-00640
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1
|
|
Definitions and Construction
|
|
|
2
|
|
|
2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Post Delivery Mortgage, Earnings Assignment and Insurance
Assignment and Second Mortgage and Second Assignments in respect of m.v. “NORWEGIAN JEWEL”
|
|
|
3
|
|
|
3
|
|
Conditions Precedent
|
|
|
6
|
|
|
4
|
|
Representations and Warranties
|
|
|
8
|
|
|
5
|
|
Expenses
|
|
|
9
|
|
|
6
|
|
Further Assurance
|
|
|
9
|
|
|
7
|
|
Counterparts
|
|
|
10
|
|
|
8
|
|
Notices
|
|
|
10
|
|
|
9
|
|
Governing Law
|
|
|
10
|
|
|
10
|
|
Jurisdiction
|
|
|
11
|
|
|
Schedule 1
|
|
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
|
|
|
15
|
|
NINTH SUPPLEMENTAL DEED
DATED 18 November 2010
BETWEEN:
|
(1)
|
PRIDE OF HAWAII, LLC
, (formerly known as Ship Ventures Inc.) of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of
America as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
);
|
|
(4)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as agent (the
“Agent”
);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the
“Hermes Agent”
); and
|
|
(6)
|
HSBC BANK PLC
of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the
“Trustee”
).
|
WHEREAS
:
|
(A)
|
By a loan agreement dated 20 April 2004 as amended and/or restated by a first supplemental deed thereto dated 25 October 2004, a second supplemental deed
thereto dated as of 30 September 2005, a third supplemental deed thereto dated 13 November 2006, a fourth supplemental deed thereto dated 21 December 2007, a fifth supplemental deed thereto dated 10 February 2008, a sixth
supplemental deed thereto dated 2 April 2009, a seventh supplemental deed thereto dated 19 October 2009 and an eighth supplemental deed thereto dated 22 July 2010 (the
“Eighth Supplement”
) entered into between the
Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the
“Original Loan
Agreement”
), the Lenders granted to the Borrower a secured loan in the Equivalent Amount of up to three hundred and eight million one hundred and thirty thousand Euros (EUR308,130,000) (the
“Loan”
) for the purpose of
enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured
by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended and/or restated by the said second supplement dated as of 30 September 2005, the said third supplement dated 13 November 2006,
the said fourth supplement dated 21 December 2007 and the said sixth supplement dated 2 April 2009 (the
“Original Guarantee”
), a first priority mortgage dated 10 February 2008 over the Borrower’s vessel
“NORWEGIAN JADE” and a second priority mortgage over m.v. “NORWEGIAN JEWEL” and a second preferred mortgage over m.v. “PRIDE OF AMERICA” each dated 2 April 2009.
|
|
(B)
|
The Guarantor has requested the Lenders, the Agent, the Hermes Agent and the Trustee, among other things, to consent to (i) the borrowing by the
Borrower from a syndicate of
|
|
|
banks (the
“New Term Loans Lenders”
), the facility agent for which is KfW IPEX-Bank GmbH, of loans which, when aggregated with the loans to be similarly borrowed by Norwegian
Jewel Limited (
“NJL”
), will amount to the lesser of (x) the sum of (I) 10% of the initial construction prices of the New Vessels and (II) 100% of the total aggregate amounts payable by the Borrower and NJL to the Hermes
agent in relation to the New Term Loans (as defined below) in respect of the Hermes cover for such facilities (the
“New Hermes Fees”
), (y) the sum of (I) EUR123,000,000 and (II) EUR3,075,000 and (z) USD224,770,000 (or
such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor) provided that the maximum amount of the New Term Loans (as defined below) available to the Borrower for drawing shall not
exceed USD130,194,139.00 unless the Dollar cap of USD224,770,000 is so increased, to finance in part the acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees, which loans will constitute
Permitted Indebtedness from the Effective Date (as defined in the Eighth Supplement) (the
“New Term Loans”
) (ii) the granting by the Borrower and NJL of mortgages and deeds of covenants over m.v.s “NORWEGIAN
JADE” and “NORWEGIAN JEWEL” (the
“Relevant Hermes Vessels”
) respectively that are junior to all mortgages and deeds of covenants existing on the date hereof in respect of such Relevant Hermes Vessel, assignments of
the earnings (including intercompany charters) and insurances of the Relevant Hermes Vessels that are junior to all earnings and insurance assignments, respectively, existing on the date hereof in respect of such Relevant Hermes Vessel and a
subordination and assignment that is junior to all Bareboat Charterer’s subordinations and assignments existing on the date hereof in respect of such Relevant Hermes Vessel to be executed by the Bareboat Charterer (as bareboat charterer) in
respect of m.v. “NORWEGIAN JADE”, each in favour of the New Term Loans Lenders or a trustee therefor to secure the repayment of the New Term Loans (the
“Fourth Priority Security Documents”
) and (iii) the
prepayment of the relevant part of the New Term Loans in full if (w) the construction contract in respect of a New Vessel is terminated prior to the delivery date of such New Vessel, (x) the delivery date of the relevant New Vessel does
not occur on or before (I) in the case of the part of the New Term Loans related to the first New Vessel, 23 December 2013 and (II) in the case of the part of the New Term Loans related to the second New Vessel, 8 December 2014,
(y) either new export credit facility to be entered into by the purchasers of the New Vessels shall terminate or (z) certain insolvency events (as specified in the loan documentation in respect of the New Term Loans) occur with respect to
the yard that is building the New Vessels (a
“Mandatory Prepayment”
).
|
|
(C)
|
The consent of the Lenders, the Agent, the Hermes Agent and the Trustee is given in respect of the above matters on the terms of this ninth supplement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
2
“Effective Date”
means the date on which the conditions precedent set out
in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“Fourth
Priority Security”
means the security interests to be granted pursuant to the Fourth Mortgages, the Fourth Assignments and all other security documents to be delivered in connection with the New Term Loans;
“Guarantee”
means the Original Guarantee as amended by this Deed;
“Loan Agreement”
means the Original Loan Agreement as amended by this Deed; and
“New Process Agent”
means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3 and 17.11 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents and Waiver of Negative Pledges in Post Delivery Mortgage, Earnings Assignment
and Insurance Assignment and Second Mortgage and Second Assignments in respect of m.v. “NORWEGIAN JEWEL”
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date the Original Loan Agreement shall be read and construed as
if:
|
|
|
2.1.1
|
the following definitions had been inserted in the appropriate place, alphabetically, in clause 1.1 of the Original Loan Agreement:
|
“
“Fourth Assignments”
means the two (2) valid and effective legal assignments of the earnings
(including intercompany charters) and insurances of the Vessel and m.v. “NORWEGIAN JEWEL” (together with the notices thereof) one (1) to be executed by each of the owners of the relevant Hermes Vessels in respect of its Hermes
Vessel and the one (1) valid and effective subordination and assignment to be executed by the Bareboat Charterer (as bareboat charterer) in respect of the Vessel in each case in favour of the New Term Loans Lenders or the collateral agent
and/or trustee therefor and junior to all subordinations and/or assignments existing as of the date of the Ninth Supplemental Deed in respect of such Hermes Vessel;
“Fourth Mortgages”
means the two (2) statutory Bahamian ship mortgages and deeds of covenants collateral thereto one (1) to be granted by respectively each of the
owners of the Vessel and m.v. “NORWEGIAN JEWEL” over its Hermes Vessel in favour of the New Term Loans Lenders or the collateral agent and/or trustee therefor and junior to all ship mortgages and deeds of covenants existing as of the
date of the Ninth Supplemental Deed in respect of such Hermes Vessel;
“Fourth Priority Security
Co-ordination Deeds”
means the deeds to be made between (among others) HSBC Bank plc (as trustee for the relevant
3
Guaranteed Loan Lenders, as first mortgagees), the Restructuring Trustee (as trustee for the relevant Guaranteed Loan Lenders, as second mortgagees), the Restructuring Trustee (as trustee for the
Non-Guaranteed Loan Lenders, as third mortgagees), the facility or collateral agent (as the case may be) for the New Term Loans Lenders and the owners of the Vessel and m.v. “NORWEGIAN JEWEL” in relation to the Fourth Mortgages and
the Fourth Assignments such co-ordination deeds to be in the form and on the terms and conditions agreed between the Lenders and the other parties to the co-ordination deed on the date of the Ninth Supplemental Deed, such terms and conditions to
include, without limitation, the conditional ability of the Borrower and Pride of Hawaii, LLC to, upon the cancellation of any construction contract for the New Vessels, prepay the relevant part of the New Term Loans in full;
“New Hermes Fees”
means the total aggregate amounts payable by the Borrower and Pride of Hawaii, LLC
to the Hermes agent in relation to the New Term Loans in respect of the Hermes cover for such facilities;
“New Term Loans”
means the loans to be borrowed by the Borrower from the New Term Loans Lenders which,
when aggregated with the loans to be similarly borrowed by Norwegian Jewel Limited, will amount to the lesser of (x) the sum of (i) 10% of the initial construction prices of the New Vessels and (ii) 100% of the New Hermes Fees
(y) the sum of (i) EUR123,000,000 and (ii) EUR3,075,000 and (z) USD224,770,000 (or such higher Dollar cap as may be later agreed between the facility agent for the New Term Loans, Hermes and the Guarantor), to finance in part the
acquisition of the New Vessels by two (2) wholly owned subsidiaries of the Guarantor and related fees;
“New Term Loans Lenders”
means the lenders of the New Term Loans;
“Ninth Supplemental Deed”
means the ninth supplemental deed dated November 2010 to this Agreement;
”;
|
|
2.1.2
|
the following paragraphs had been inserted in the appropriate place, alphabetically, in paragraph (iv)(y) of the definition of
“Permitted Liens”
in
clause 1.1 of the Original Loan Agreement:
|
“
(i) the Fourth Mortgages and (j) the Fourth
Assignments
”; and
|
|
2.1.3
|
the following words had been inserted in the definition of
“Security Documents”
after the words “
the Third Priority Security Co-ordination
Deed
” in clause 1.1 of the Original Loan Agreement:
|
“
, the Fourth Priority Security
Co-ordination Deeds
”.
|
|
2.2
|
Subject to Clause 3.1 and pursuant to Clause 2.1, immediately upon and with effect from the Effective Date:
|
|
|
2.2.1
|
notwithstanding the provisions of clause 10.11.1 of the Original Loan Agreement, the Lenders, the Agent and the Hermes Agent agree and consent to the
Borrower borrowing the relevant amount of the New Term Loans referred to in recital (B) of this Deed and, if so required, on-lending
|
4
|
|
such amount to the Guarantor or to the intended owners of the New Vessels. In respect of such on-lending the Borrower and the Guarantor each hereby confirms that so on-lending the relevant amount
of the New Term Loans will not prevent the Borrower from performing its obligations under the Loan Agreement at any time;
|
|
|
2.2.2
|
notwithstanding the provisions of clause 10.5 of the Original Loan Agreement and the relevant Security Documents, the Lenders, the Agent and the Hermes Agent agree and
consent to the Borrower granting the relevant Fourth Priority Security and entering into the relevant Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth
Priority Security Documents;
|
|
|
2.2.3
|
notwithstanding the provisions of the relevant Security Documents, the Lenders, the Agent, the Hermes Agent and the Trustee agree and consent to NJL and the Bareboat
Charterer granting the other Fourth Priority Security and entering into the relevant Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties in relation to the relevant Fourth Priority
Security Documents;
|
|
|
2.2.4
|
the Lenders, the Agent and the Hermes Agent instruct the Trustee to instruct the Restructuring Trustee, pursuant to the relevant Second Priority Security Co-ordination
Deed, to allow NJL and/or the Bareboat Charterer (as the case may be) to grant the relevant Fourth Priority Security and enter into the Fourth Priority Security Documents in form attached to the relevant intercreditor deed with the relevant parties
in relation to the relevant Fourth Priority Security Documents;
|
|
|
2.2.5
|
the Lenders, the Agent, the Hermes Agent and/or the Trustee instruct the Agent (as first priority mortgagee of m.v. “NORWEGIAN JADE”) to enter into, and the
Trustee (in relation to the second priority mortgage over m.v. “NORWEGIAN JEWEL”) to procure the Restructuring Trustee to enter into, intercreditor deeds with the relevant parties in relation to the Fourth Priority Security Documents,
in form approved by the Lenders and the Hermes Agent, it being understood that a Mandatory Prepayment shall be permitted provided that, at the relevant time, the Lenders receive evidence satisfactory to them from the Guarantor that the Borrower and
NJL (after giving effect to any contributions from the Guarantor) will be able to meet their obligations for the next twelve (12) months under respectively the Loan Agreement and the USD334,050,000 facility agreement dated 20 April 2004
(as amended and/or restated from time to time) if the Mandatory Prepayment is made; and
|
|
|
2.2.6
|
any further consent required under the Original Loan Agreement and the other Security Documents to permit the Borrower and NJL to borrow the New Term Loans and the
Borrower, NJL and the Bareboat Charterer to grant the Fourth Priority Security and enter into the Fourth Priority Security Documents is hereby given by the Lenders, the Agent, the Hermes Agent and the Trustee.
|
5
|
|
2.3
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that immediately upon and with effect from the
Effective Date:
|
|
|
2.3.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.3.2
|
the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Loan
Agreement, until it has been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.3.3
|
its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
|
|
|
2.3.4
|
its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.4
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
Subject to Clause 3.2, the instructions and consents provided for in Clause 2 are conditional upon and shall not be effective unless and until the Agent has received
the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed and the documents to be executed pursuant hereto; and
|
|
|
(c)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the
|
6
|
|
execution of and performance by the respective Relevant Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate
from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or shareholders of each of the Relevant
Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the members or
shareholders of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Effective Date (as defined in the Eighth Supplement) has occurred;
|
7
|
|
3.1.3
|
a Certified Copy of a confirmation in respect of the relevant Hermes Vessel Owner Second Guarantee duly executed by Norwegian Jewel Limited;
|
|
|
3.1.4
|
a confirmation from the Hermes Agent that the consent of Hermes has been obtained for the amendments contemplated by this Deed; and
|
|
|
3.1.5
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware and England in such form as the Agent may
require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date.
|
|
3.2
|
If the Lenders, the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to give the
instructions and consents provided for in Clause 2 without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen
(14) days of the Effective Date (or such other period as the Agent may stipulate) and the giving of the instructions and consents provided for in Clause 2 as aforesaid shall not be construed as a waiver of the Agent’s right to receive the
documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to give the instructions and consents provided for in Clause 2 in the absence of such documents or evidence.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document save
8
|
|
as contemplated by the relevant Fourth Security Documents and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents
contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee or the Restructuring Trustee;
|
|
|
4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Lenders, the Agent, the Hermes Agent and the Trustee on demand on a full indemnity basis
for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Lenders, the Agent, the Hermes Agent and/or the
Trustee in respect of or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.2
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Hermes Agent, the Trustee and the Lenders on demand of the Agent on a full
indemnity basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Hermes Agent, the Trustee and/or the Lenders
in respect of, or in connection with the enforcement of, or the preservation of any rights under this Deed.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the
Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent, the Hermes Agent and/or the Trustee the full
benefit of the rights,
9
powers and remedies conferred upon the Lenders, the Agent, the Hermes Agent and/or the Trustee in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of
America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57th Street, 43rd Floor, New York, NY 10019, United
States of America (marked for the attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent, the Hermes Agent or the Trustee has
by fifteen (15) days’ written notice to the Borrower or the Guarantor specified another address) be made or delivered to the Agent, the Hermes Agent or the Trustee at its Office, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in Schedule 1) specified by it from time to time for the purpose and
shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor shall be signed by the
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and
shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
10
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent
proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent, the Lenders, the Hermes Agent or the Trustee may have (whether under the laws
of any country, an international convention or otherwise) with regard to the bringing of
|
11
|
|
proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day and year first
before written.
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Amelia Reffold
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Amelia Reffold
|
|
for and on behalf of
|
|
)
|
|
PRIDE OF HAWAII, LLC
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
EXECUTED
as a
DEED
and
DELIVERED
|
|
)
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
acting by Amelia Reffold
|
|
) /s/ Amelia Reffold
|
|
expressly authorised in accordance with
|
|
)
|
|
the laws of Bermuda
|
|
)
|
|
by virtue of a power of attorney granted
|
|
)
|
|
by
NCL CORPORATION LTD.
|
|
)
|
|
on 17 November 2010
|
|
)
|
|
such execution being witnessed by:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as a Lender
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
12
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
KFW
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
DnB NOR BANK ASA
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
|
|
GIROZENTRALE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
CREDIT AGRICOLE CORPORATE
|
|
)
|
|
AND INVESTMENT BANK
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
13
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
HSBC Bank plc
|
|
)
|
|
as the Agent, the Trustee and a Lender
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Danae Zoi Mariel Ugolini
|
|
)
|
|
duly authorised attorney-in-fact
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
for and on behalf of
|
|
)
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as the Hermes Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ Roderick McGeachy
|
|
|
|
Roderick McGeachy
|
|
|
|
Stephenson Harwood
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London EC4M 8SH
|
|
|
14
Schedule 1
The Agent, the Hermes Agent, the Trustee, the Restructuring Trustee and the Lenders
Name and address
Agent
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr
Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
15
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan
Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan
Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef
Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
16
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder
Email: amra.koluder@dnbnor.no
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511
361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan
Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence
Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
17
Exhibit 10.32
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 22 JULY 2010
NCL CORPORATION LTD.
(as borrower)
NORWEGIAN PEARL, LTD.
NORWEGIAN GEM, LTD.
(as guarantors)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
DnB NOR BANK ASA
(as agent)
DnB NOR BANK ASA
(as security agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Lower Saxony guarantee agent)
FOURTH
SUPPLEMENTAL DEED TO
UP TO EUR624,000,000
REVOLVING LOAN FACILITY AGREEMENT
dated 7 October 2005
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/43-02913/45-01868/47-02886/49-00639
CONTENTS
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Page
|
|
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1
|
|
Definitions and Construction
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Amendment of Original Facility Agreement and Other Security Documents
|
|
|
2
|
|
|
|
|
|
|
3
|
|
Conditions Precedent
|
|
|
3
|
|
|
|
|
|
|
4
|
|
Representations and Warranties
|
|
|
6
|
|
|
|
|
|
|
5
|
|
Fee and Expenses
|
|
|
7
|
|
|
|
|
|
|
6
|
|
Further Assurance
|
|
|
7
|
|
|
|
|
|
|
7
|
|
Counterparts
|
|
|
8
|
|
|
|
|
|
|
8
|
|
Notices
|
|
|
8
|
|
|
|
|
|
|
9
|
|
Governing Law
|
|
|
8
|
|
|
|
|
|
|
10
|
|
Jurisdiction
|
|
|
8
|
|
|
|
|
|
|
Schedule 1
|
|
Particulars of Agent, Security Agent, Lower Saxony Guarantee Agent, Restructuring Trustee and Lenders
|
|
|
14
|
|
|
|
|
|
|
Schedule 2
|
|
Amendment of Original Facility Agreement
|
|
|
18
|
|
|
|
|
|
|
Schedule 3
|
|
Reduction Schedules calculated using the Application of Proceeds Formulation
|
|
|
23
|
|
|
|
|
|
|
Schedule 4
|
|
Reduction Schedules for the purpose of calculating the amount of the Applicable Margin payable
|
|
|
25
|
|
FOURTH SUPPLEMENTAL DEED
DATED 22 JULY 2010
BETWEEN:
|
(1)
|
NCL CORPORATION LTD.
a company incorporated in and existing under the laws of Bermuda with its registered office at Milner House, 18 Parliament Street, Hamilton
HM 12, Bermuda as borrower (the “
Borrower
”);
|
|
(2)
|
NORWEGIAN PEARL, LTD.
and
NORWEGIAN GEM, LTD.
each being a company incorporated in and existing under the laws of Bermuda with its registered office at
Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantors (collectively the “
Guarantors
” and each individually a “
Guarantor
”);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the “
Lenders
” and each individually a
“
Lender
”); and
|
|
(4)
|
DnB NOR BANK ASA
of Stranden 21, NO-0021 Oslo, Norway as agent for itself and the Lenders (the “
Agent
”);
|
|
(5)
|
COMMERZBANK AKTIENGESELLSCHAFT
of Domstrasse 18, 20095 Hamburg, Federal Republic of Germany as German State of Lower Saxony agent (the “
Lower Saxony
Guarantee Agent
”); and
|
|
(6)
|
DnB NOR BANK ASA
of Stranden 21, NO-0021 Oslo, Norway as security agent (the “
Security Agent
”).
|
WHEREAS:
|
(A)
|
By a secured loan facility agreement dated 7 October 2005 as amended and/or restated by a first supplemental deed dated 13 November 2006, a second
supplemental deed dated 21 December 2007 and a third supplemental deed dated 2 April 2009 (the “
Original Facility Agreement
”) made between (among others) (1) the Borrower as borrower (2) the Lenders as lenders
(3) the Agent as agent and (4) the Lower Saxony Guarantee Agent as agent, the Lenders agreed to make available to the Borrower a revolving loan facility of up to six hundred and twenty four million euro (EUR624,000,000) or the equivalent
in Dollars (the “
Facility
”) in two (2) tranches. The repayment of the Facility by the Borrower has been secured by (among other things) guarantees and indemnities dated 28 November 2006 and 1 October 2007 granted by
the Guarantors respectively.
|
|
(B)
|
The Borrower has requested the Lenders and the Agent, among other things, to consent to the amendment of the definition of Permitted Indebtedness (as defined in the
Original Facility Agreement), to enable any member(s) of the NCLC Group to order the New Vessels (as defined in the Facility Agreement) (or either of them), and to allow the Borrower to pay dividends after the listing of the ordinary capital stock
of the Borrower on an Approved Stock Exchange.
|
|
(C)
|
The consent of the Lenders, the Agent and the Lower Saxony Guarantee Agent is given in respect of the above matters on the terms of this fourth supplement to the
Original Facility Agreement (this “
Deed
”) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as
follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Facility Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall
have the meanings set out below:
|
“
Application of Proceeds Formulation
” means the formulation
set out in Clause 3.3;
“
Effective Date
” means the date on which the conditions precedent set out in
Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“
Facility
Agreement
” means the Original Facility Agreement as amended by this Deed;
“
Maximum Amount of the Delayed
Principal Amount
” shall have the meaning specified for such term in the Facility Agreement; and
“
New Process
Agent
” means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clauses 1.2, 1.3, 1.4 and 1.5 of the Facility Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Facility Agreement and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date:
|
|
|
2.1.1
|
the Original Facility Agreement shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 to this Deed had been
inserted or amended to read as set out in the second column of Schedule 2 to this Deed;
|
|
|
2.1.2
|
schedule 8 to the Original Facility Agreement had been deleted and substituted with Schedule 3 to this Deed; and
|
|
|
2.1.3
|
a new schedule 9 had been added to the Original Facility Agreement in the form of Schedule 4 to this Deed.
|
|
|
2.2
|
The Borrower and each of the Guarantors hereby confirms to the Lenders, the Agent, the Security Agent and the Lower Saxony Guarantee Agent that with effect from the
Effective Date:
|
|
|
2.2.1
|
all references to the Original Facility Agreement in the other Security Documents shall be construed as references to the Facility Agreement and all terms used in such
Security Documents whose meanings are defined by reference to the Original Facility Agreement shall be defined by reference to the Facility Agreement;
|
2
|
|
2.2.2
|
the Security Documents shall apply to, and extend to secure, the whole of the Outstanding Indebtedness, as defined in clause 1.1 of the Facility Agreement, until it has
been repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Facility Agreement; and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the
Facility Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Facility Agreement and the other Security Documents shall remain in full force and effect and nothing
herein contained shall relieve the Borrower or either of the Guarantors or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
The amendment of the Original Facility Agreement provided for in Clause 2 is conditional upon and shall not be effective unless and until the Agent has received the
following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for the Borrower and each of the Guarantors as agent for service of process in England in respect of
this Deed and any documents to be executed pursuant hereto;
|
|
|
(c)
|
evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
|
|
|
(d)
|
the following corporate documents in respect of the Borrower, each of the Guarantors (together the “
Relevant Parties
”):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
3
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(d)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
evidence that the Cash Sweep Credit Facilities have been cancelled and/or prepaid pro rata based on the Maximum Amount of the Delayed Principal Amount (as defined in
the facility agreement for each Cash Sweep Credit Facility) for each Cash Sweep Credit Facility (or, if applicable, tranche thereof) by an aggregate amount of one hundred million Dollars (USD100,000,000);
|
4
|
|
3.1.3
|
a Certified Copy of a confirmation in respect of each of the Hermes Vessel Owner Third Guarantees duly executed by the owners of the Hermes Vessels;
|
|
|
3.1.4
|
a written confirmation from the Lower Saxony Guarantee Agent that the notarially attested and apostilled written consent of the German State of Lower Saxony obtained in
relation to the amendments to the Original Facility Agreement contemplated by this Deed is either (a) unconditional or (b) conditional but any such condition has been satisfied by the terms of the amendments to the Original Facility
Agreement contemplated by this Deed;
|
|
|
3.1.5
|
evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each NCLC Group Credit Facility have
been satisfied; and
|
|
|
3.1.6
|
agreement to the issue of such favourable written legal opinions including in respect of Bermuda, the Isle of Man, Delaware and the United States of America and England
in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2).
|
|
3.2
|
If the Agent in accordance with clause 20.3 of the Original Facility Agreement decides to permit the amendment of the Original Facility Agreement hereby without having
received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the Effective Date (or such other period as the Agent
may stipulate) and the amendment of the Original Facility Agreement as aforesaid shall not be construed as a waiver of the Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the
Security Agent, the Lower Saxony Guarantee Agent or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
|
|
|
3.3
|
The amount of the Facility to be cancelled and/or prepaid pursuant to Clause 3.1.2 shall be applied:
|
|
|
3.3.1
|
pro rata between Tranche A and Tranche B, based on the Maximum Amount of the Delayed Principal Amount in each Tranche;
|
|
|
3.3.2
|
entirely to the Delayed Principal Amount; and
|
|
|
3.3.3
|
in forward order of maturity with respect to the dates of the Revised Reductions.
|
For illustrative purposes:
|
|
(a)
|
any cancellation and/or prepayment made pursuant to Clause 3.1.2 shall be applied to the reduction of the Delayed Principal Amount in an amount equal to the difference
between the amounts in the third column (
Originally Scheduled Reductions
) and the fifth column (
Revised Reductions
) of schedule 8 to the Original Facility Agreement of each Revised Reduction i.e. in the amount of USD3,337,879.33 in the
case of Tranche A and USD2,982,258.44 in the case of Tranche B;
|
5
|
|
(b)
|
a revised reduction schedule (schedule 8 to the Facility Agreement and Schedule 4 to this Deed) will show the application of the amounts of the Facility to be cancelled
and/or prepaid pursuant to Clause 3.1.2 and the amount of each Revised Reduction to be made after such cancellation and/or prepayment; and
|
|
|
(c)
|
a revised reduction schedule (schedule 9 to the Facility Agreement and Schedule 5 to this Deed) will show the application of the amounts of the Facility to be cancelled
and/or prepaid pursuant to Clause 3.1.2 in so far as they relate to the calculation of the amount of the Applicable Margin to be paid after such cancellation and/or prepayment.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
The Borrower and each of the Guarantors represents and warrants to the Lenders, the Agent, the Security Agent and the Lower Saxony Guarantee Agent that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Agent or the Security Agent;
|
|
4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
|
6
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders, the Agent, the Security Agent and/or the Lower Saxony Guarantee Agent in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower shall pay to each of the Lenders (directly or through the Agent) on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the NCLC Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Facility
Agreement or the Facility Agreement to the contrary, no Lender shall be required to share with the other Lenders, the Agent, the Security Agent and/or the Lower Saxony Guarantee Agent any such handling/work fee received.
|
|
|
5.2
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Lower Saxony Guarantee Agent and the Lenders on demand of the Agent on a
full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent, the Lower Saxony
Guarantee Agent and/or the Security Agent in respect of, or in connection with the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of
this Deed.
|
|
|
5.3
|
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent, the Security Agent and the Lenders on demand of the Agent on a full indemnity
basis for all charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent, the Security Agent and/or the Lenders in respect of, or in
connection, with the enforcement of, or the preservation of any rights under this Deed.
|
The
Borrower and each of the Guarantors will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the
Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders, the Agent and/or the Lower Saxony Guarantee Agent the full benefit of the rights, powers and remedies
conferred upon the Lenders and/or the Agent in any such document.
7
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or a Guarantor pursuant to this Deed shall (unless the
Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent or the Lower Saxony Guarantee Agent (as the case may be) specified another address) be made or delivered to the Borrower and/or the Guarantor at/c/o
7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice). Any notice, demand or other communication to
be made or delivered by the Borrower or a Guarantor pursuant to this Deed shall (unless the Agent or the Lower Saxony Guarantee Agent (as the case may be) has by fifteen (15) days’ written notice to the Borrower or the Guarantor specified
another address) be made or delivered to the Agent or the Lower Saxony Guarantee Agent at its Lending Branch, the details of which are set out in Schedule 1.
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantors is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) and in the case of the Agent and the
Lower Saxony Guarantee Agent is as recorded in Schedule 1) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax
communication, if made to the Agent or the Lower Saxony Guarantee Agent by the Borrower or a Guarantor shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears
on the list of specimen signatures contained in the secretary’s certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being
for that purpose by the Agent or the Lower Saxony Guarantee Agent (as the case may be) to the Borrower and the Guarantor.
|
|
|
8.3
|
The provisions of clauses 21.1, 21.5 and 21.6 of the Original Facility Agreement shall apply to this Deed.
|
This Deed
and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
8
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Lenders,
the Agent, the Security Agent and the Lower Saxony Guarantee Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party
may take concurrent proceedings in any number of jurisdictions.
|
|
10.2
|
None of the Borrower or the Guarantors may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process Agent
resigns or its appointment ceases to be effective, the Borrower and/or the Guarantors (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantors’ (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantors of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.3
|
For the purpose of securing its obligations under Clause 10.2, the Borrower and each of the Guarantors irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent, the Security Agent or any Lender) to act as the Borrower’s or that Guarantor’s (as
the case may be) process agent in England with the unconditional authority described in Clause 10.2.
|
|
|
10.4
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantors (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantors (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.5
|
The Borrower and each of the Guarantors appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf, service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantors (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent the Security Agent or the Lenders may have (whether under the laws of any country, an
international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause “
judgment
” includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
9
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day
and year first before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NCL CORPORATION LTD.
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London
|
|
|
|
EC4M 8SH
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NORWEGIAN PEARL, LTD.
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
NORWEGIAN GEM, LTD.
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
10
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
DnB NOR BANK ASA
|
|
)
|
|
as a Lender, the Agent and the Security Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
NORDDEUTSCHE LANDESBANK
|
|
)
|
|
GIROZENTRALE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
NORDEA BANK NORGE ASA
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
11
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By David Sumner
|
|
)
|
|
for and on behalf of
|
|
) /s/ David Sumner
|
|
BANK OF SCOTLAND PLC
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
UNICREDIT BANK AG
|
|
)
|
|
(formerly known as Bayerische Hypo- und
|
|
)
|
|
Vereinsbank AG)
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
DEUTSCHE SCHIFFSBANK
|
|
)
|
|
AKTIENGESELLSCHAFT
, Bremen and Hamburg
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
12
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
FOKUS BANK
|
|
)
|
|
(being the Norwegian branch of Danske Bank A/S)
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By /s/ Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
HSH NORDBANK AG
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
SKANDINAVISKA ENSKILDA BANKEN
|
|
)
|
|
AB (publ)
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Danae Zoi Mariel Ugolini
|
|
)
|
|
for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
)
|
|
as the Lower Saxony Guarantee Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
Same As Above
|
|
|
13
Schedule 1
Particulars of Agent, Security Agent, Lower Saxony Guarantee Agent, Restructuring Trustee and Lenders
|
|
|
|
|
Name and Address
|
|
|
|
Agent, Security Agent and Restructuring Trustee
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
|
|
|
|
Lower Saxony Guarantee Agent
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
Global Shipping
|
|
Domstrasse 18
|
|
20095 Hamburg
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 6949
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Martin Hugger/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
|
|
|
|
|
Restructuring Trustee
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
|
|
|
|
Name and Address
|
|
|
|
Lenders
|
|
COMMERZBANK AKTIENGESELLSCHAFT
|
|
Global Shipping
|
|
Domstrasse 18
|
|
20095 Hamburg
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Martin Hugger/
|
|
|
|
Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
14
|
|
|
|
|
DnB NOR BANK ASA
|
|
Stranden 21
|
|
NO-0021 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder
|
|
Email:
|
|
amra.koluder@dnbnor.no
|
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
|
|
60325 Frankfurt am Main
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
|
|
|
|
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
|
Friedrichswall 10
|
|
30159 Hannover
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthuns gate 17
|
|
Oslo
|
|
P O Box 1166 Sentrum
|
|
NO-0107 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 22 484278
|
|
Attn:
|
|
Mr Arne Berglund
|
|
Email:
|
|
arne.berglund@nordea.com
|
15
|
|
|
|
|
BANK OF SCOTLAND PLC
|
|
Marine Finance
|
|
Second Floor
|
|
New Uberior House
|
|
11 Earl Grey Street
|
|
Edinburgh EH3 9BN
|
|
Scotland
|
|
|
|
|
Fax:
|
|
+44 131 659 1194
|
|
Attn:
|
|
Douglas Newton / Russell Parker
|
|
Email:
|
|
douglas_newton@bankofscotland.co.uk
|
|
|
|
|
|
UNICREDIT BANK AG
|
|
(formerly known as Bayerische Hypo- und
|
|
Vereinsbank AG)
|
|
Alter Wall 22
|
|
20457 Hamburg
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
|
Mr Peter-Alexander Wunner/
|
|
|
|
Mr Michael McCarthy
|
|
Email:
|
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
|
michael.mccarthy@unicreditgroup.de
|
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Bremen and Hamburg
|
|
Domshof 17
|
|
28195 Bremen
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 421 3609 329
|
|
Attn:
|
|
Dr Matthias Fischer
|
|
Email:
|
|
matthias.fischer@schiffsbank.com
|
|
|
|
|
|
FOKUS BANK
|
|
(being the Norwegian branch of Danske Bank A/S)
|
|
Stortingsgaten 6
|
|
P O Box 1170 Sentrum
|
|
NO-0107 Oslo
|
|
Norway
|
|
|
|
|
Fax:
|
|
+47 85 407990
|
|
Attn:
|
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
|
oivind.haraldsen@fokus.no/
|
|
|
|
tore.braein@fokus.no
|
16
|
|
|
|
|
HSH NORDBANK AG
|
|
Gerhart-Hauptmann-Platz 50
|
|
20095 Hamburg
|
|
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3333 613741
|
|
Attn:
|
|
Mr Carsten Dreyer
|
|
Email:
|
|
carsten.dreyer@hsh-nordbank.com
|
|
Fax:
|
|
+1 212 407 6008
|
|
Attn:
|
|
Ms Frauke Hay
|
|
Email:
|
|
frauke.hay@hsh-nordbank.com
|
|
|
|
|
|
SKANDINAVISKA ENSKILDA BANKEN AB
(publ)
|
|
Kungsträdgårdsgatan 8
|
|
SE-106 40 Stockholm
|
|
Sweden
|
|
|
|
|
|
|
Fax:
|
|
+44 20 7236 5144
|
|
Attn:
|
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
|
egil.aarrestad@seb.co.uk/
|
|
|
|
malcolm.stonehouse@seb.co.uk
|
17
Schedule 2
Amendment of Original Facility Agreement
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
|
|
|
Clause 1.1, definition of “
Applicable Margin
”
(paragraph (iii))
|
|
(iii) the applicable rate per annum set out in the table above as
amended by paragraph (ii) above and further increased by six per cent (6.0%) shall apply to the Delayed Principal Amount of each Tranche;
notwithstanding the provisions of the penultimate paragraph of Clause 4.16 (as more particularly described in the final paragraph of Clause
4.16);
|
|
|
|
|
Clause 1.1, definition of “
Application of Proceeds Formulation
”
|
|
means the following formulation for the application of any amount of the Facility to be cancelled and/or prepaid pursuant to Clause
4.16:
(i) pro rata between Tranche A and Tranche B, based on the Maximum Amount of
the Delayed Principal Amount in each Tranche;
(ii) entirely to the Delayed Principal Amount;
(iii) in respect of any cancellation and/or prepayment of the Facility to be made pursuant
to clause 3.1.2 of the Fourth Supplemental Deed, in forward order of maturity with respect to the dates of the Revised Reductions; and
(iv) in respect of any other cancellation and/or prepayment of the Facility to be made
pursuant to Clause 4.16, in forward order of maturity with respect to the dates of the Revised Reductions, subject to the approval of all of the Lenders in respect of each such cancellation and/or prepayment and, if the approval of all of the
Lenders is not obtained, in inverse order of maturity with respect to the dates of the Revised Reductions;
|
|
|
|
|
Clause 1.1, definition of “
Fourth Supplemental Deed
”
|
|
means the fourth supplemental deed dated 2010 to this
Agreement;
|
18
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 1.1, definition
(new) of “
Maximum Amount of the Delayed Principal Amount
”
|
|
means USD53,406,069.32 in respect of Tranche A and USD53,680,652.00 in respect of Tranche B;
|
|
|
|
|
Clause 1.1, definition
(new) of “
New Vessels
”
|
|
means the two (2) newbuild cruise vessels each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of
passenger cabins or gross or net tonnage, not on order by a member of the NCLC Group as of the Effective Date (as defined in the Fourth Supplemental Deed);
|
|
|
|
|
Clause 1.1, definition of “
Permitted Indebtedness
”
|
|
means (i) any monies borrowed or raised other than from any direct or indirect shareholder of the Borrower prior to the date on which the last of the Third Supplemental Deed and the
Amendment Documents have been signed by all the parties thereto and notified by the Borrower to the Agent prior to such date; (ii) the Letter of Credit Facilities; (iii) Permitted Refinancing Indebtedness and (iv) one or more financing arrangements
entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term sheet(s) related to such financing arrangement(s) having been disclosed by the Borrower to the German State of Lower Saxony prior to
their execution by the Borrower or any other member of the NCLC Group and such financing arrangement(s) being on terms satisfactory to the German State of Lower Saxony. The term sheet(s) will be disclosed to the German State of Lower Saxony on the
basis that the terms of such financing arrangement(s) shall be deemed satisfactory unless the German State of Lower Saxony notifies the Borrower to the contrary within five (5) business days (in the city in which the German State of Lower Saxony has
its office) of receipt of the term sheet(s);
|
|
|
|
|
Clause 1.1, definition
(new) of “
Total Delayed
Principal Amount
”
|
|
means USD280,561,651.28, being the aggregate of the Maximum Amount of the Delayed Principal Amount (as defined in the facility agreement for each Cash Sweep Credit Facility) for
each Cash Sweep Credit Facility (or, if applicable, tranche thereof);
|
19
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 4.6 (final sentence)
|
|
Any such notice of cancellation, once given, shall be irrevocable and upon such cancellation taking effect the Commitment of each of the Lenders to the relevant Tranche shall be
permanently reduced proportionately and the Borrower shall on the date designated in its notice prepay such amount of the outstanding Drawings as will ensure that immediately thereafter the aggregate amount of the Drawings will not exceed the
Commitments to the relevant Tranche as so reduced by virtue of the Borrower’s cancellation. Any voluntary cancellation and/or prepayment of a Tranche made pursuant to this Clause 4.6 shall be applied in satisfaction of the Originally Scheduled
Reductions in inverse order of maturity and Schedule 8 and Schedule 9 shall be recalculated and agreed in accordance with Clause 4.16. Notwithstanding anything to the contrary in this Clause 4.6, any prepayment made before an amount equal to
the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid and/or repaid shall be governed by Clause 4.16.
|
|
|
|
|
Clause 4.16
|
|
Notwithstanding anything to the contrary in this Agreement, other than in respect of ordinary refinancings, no voluntary cancellation of Commitments to a Tranche may be made
before an amount equal to the Total Delayed Principal Amount has been cancelled and/or prepaid and/or repaid unless pro rata prepayments, reductions and/or cancellations of the other Tranche and the other Cash Sweep Credit Facilities are to be made.
The prepayment, reduction and/or cancellation to be made under each Cash Sweep Credit Facility shall be calculated based on each Cash Sweep Credit Facility’s remaining outstanding Delayed Principal Amount (as defined in this Agreement in
respect of the Facility and as defined in the relevant facility agreement in respect of each of the other Cash Sweep Credit Facilities) as of the date of the prepayment, reduction and/or cancellation, save for any cancellation and/or prepayment to
be made pursuant to the Fourth Supplemental Deed. Each such outstanding Delayed Principal Amount or Maximum Amount of the Delayed Principal Amount (as the case may be), to the extent it is not already denominated in Dollars, shall be converted into
Dollars on the date falling ten (10) Business Days prior to the relevant prepayment, reduction and/or cancellation date at the rate which appears on the Reuters Page ECB37 at 1.30 p.m. London time on that date, for the purposes of such
calculation. The allocation between the Tranches shall be based on the percentage that a Tranche bears to the Facility. Subject to the rest of this Clause 4.16, with respect to each Tranche on the relevant date of measurement, any prepayment made
before an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid and/or repaid shall be applied in accordance with the Application of Proceeds Formulation. As at the Effective Date (as defined
in the Fourth Supplemental Deed), Schedule 8 contains reduction schedules calculated following the cancellation and/or prepayment of an amount of the Facility as more particularly described in clause 3.1.2 of the Fourth Supplemental Deed. Following
any further voluntary cancellation and/or prepayment of the Facility pursuant to this Clause 4.16 or Clause 4.6, Schedule 8 shall be recalculated using the Application of Proceeds Formulation or in accordance with Clause 4.6 (as the case may be),
shall be agreed between the Agent and the Borrower as soon as possible after the cancellation and/or prepayment date and shall, from such cancellation and/or prepayment date, be deemed to be a part of this Agreement.
|
20
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
|
|
Notwithstanding anything to the contrary, paragraphs (ii) and (iii) of the definition of Applicable Margin shall continue to apply as if the amount of each Revised Reduction or
Originally Scheduled Reduction cancelled and/or prepaid as described in the last three (3) sentences of the previous paragraph of this Clause 4.16 or in Clause 4.6 had been applied pro rata between the Delayed Principal Amount and the Ordinary
Principal Amount comprising each such Revised Reduction or Originally Scheduled Reduction prior to any voluntary cancellation and/or prepayment made under this Clause 4.16 pursuant to the Fourth Supplemental Deed. As at the Effective Date (as
defined in the Fourth Supplemental Deed), Schedule 9 contains reduction schedules calculated following the cancellation and/or prepayment of an amount of the Facility as more particularly described in clause 3.1.2 of the Fourth Supplemental
Deed, on the basis that the amount of each such Revised Reduction cancelled and/or prepaid had been applied pro rata between the Delayed Principal Amount and the Ordinary Principal Amount comprising each such Revised Reduction prior to any voluntary
cancellation and/or prepayment made under this Clause 4.16 pursuant to the Fourth Supplemental Deed. Following any further voluntary cancellation and/or prepayment of the Facility pursuant to this Clause 4.16 or Clause 4.6, Schedule 9 shall be
recalculated on the basis described in this paragraph of this Clause 4.16, shall be agreed between the Agent and the Borrower as soon as possible after the cancellation and/or prepayment date and shall, from such cancellation and/or prepayment date,
be deemed to be a part of this Agreement.
|
21
|
|
|
|
|
Clause/Definition
|
|
Amendment
|
|
Clause 10.4
|
|
10.4.1 The Borrower shall not and shall procure that no other
member of the NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Borrower may pay dividends to another member of the NCLC Group; (ii) the Borrower
may pay dividends in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the Borrower’s capital stock with respect to income taxable as a result of any
member of the NCLC Group being treated as a pass-through entity or attributable to any member of the NCLC Group and (iii) after the later of (x) the listing of the ordinary capital stock of the Borrower on an Approved Stock Exchange and (y) an
amount equal to the Total Delayed Principal Amount having been cancelled and/or prepaid and/or repaid, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Borrower and its subsidiaries for the
period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default has occurred and is continuing or would result
from the payment of such dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent
pursuant to Clause 10.2 is less than 5.50:1.00. The Agent shall use the Application of Proceeds Formulation to determine whether an amount equal to the relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid and/or
repaid.
10.4.2 The Borrower will procure that any dividends or other distributions and
interest paid or payable in connection therewith received by the Shareholder, NCL America Holdings and/or Arrasas will be paid to the Borrower by way of dividend promptly on receipt.
|
|
|
|
|
Clause 10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Facility
Agreement.
|
|
|
|
|
Clause 10.30 (new)
|
|
The Borrower shall not (and will procure that no other company in the NCLC Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is
available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing arrangements.
|
22
Schedule 3
Reduction Schedules calculated using the Application of Proceeds Formulation
Tranche A:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
28-May-10
|
|
|
307,084,898.68
|
|
|
|
13,351,517.33
|
|
|
|
40,054,551.99
|
|
|
|
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
307,084,898.68
|
|
|
|
13,351,517.33
|
|
|
|
40,054,551.99
|
|
|
|
|
|
|
|
347,139,450.67
|
|
|
Amendment Prepayment
|
|
|
307,084,898.68
|
|
|
|
|
|
|
|
40,054,551.99
|
|
|
|
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
307,084,898.68
|
|
|
|
|
|
|
|
21,019,138.89
|
|
|
|
19,035,413.10
|
|
|
|
328,104,037.57
|
|
|
29-Nov-10
|
|
|
293,733,381.35
|
|
|
|
13,351,517.33
|
|
|
|
53,406,069.32
|
|
|
|
—
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
293,733,381.35
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
—
|
|
|
|
328,104,037.57
|
|
|
31-May-11
|
|
|
280,381,864.02
|
|
|
|
13,351,517.33
|
|
|
|
50,068,189.99
|
|
|
|
16,689,396.66
|
|
|
|
330,450,054.01
|
|
|
|
|
|
|
|
280,381,864.02
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
13,351,517.33
|
|
|
|
314,752,520.24
|
|
|
28-Nov-11
|
|
|
267,030,346.69
|
|
|
|
13,351,517.33
|
|
|
|
46,730,310.66
|
|
|
|
16,689,396.66
|
|
|
|
313,760,657.35
|
|
|
|
|
|
|
|
267,030,346.69
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
13,351,517.33
|
|
|
|
301,401,002.91
|
|
|
29-May-12
|
|
|
253,678,829.36
|
|
|
|
13,351,517.33
|
|
|
|
43,392,431.33
|
|
|
|
16,689,396.66
|
|
|
|
297,071,260.69
|
|
|
|
|
|
|
|
253,678,829.36
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
13,351,517.33
|
|
|
|
288,049,485.58
|
|
|
28-Nov-12
|
|
|
240,327,312.03
|
|
|
|
13,351,517.33
|
|
|
|
40,054,552.00
|
|
|
|
16,689,396.66
|
|
|
|
280,381,864.03
|
|
|
|
|
|
|
|
240,327,312.03
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
13,351,517.33
|
|
|
|
274,697,968.25
|
|
|
28-May-13
|
|
|
226,975,794.70
|
|
|
|
13,351,517.33
|
|
|
|
36,716,672.67
|
|
|
|
16,689,396.66
|
|
|
|
263,692,467.37
|
|
|
|
|
|
|
|
226,975,794.70
|
|
|
|
13,351,517.33
|
|
|
|
34,370,656.22
|
|
|
|
13,351,517.33
|
|
|
|
261,346,450.92
|
|
|
29-Nov-13
|
|
|
213,624,277.37
|
|
|
|
13,351,517.33
|
|
|
|
33,378,793.34
|
|
|
|
16,689,396.66
|
|
|
|
247,003,070.71
|
|
|
|
|
|
|
|
213,624,277.37
|
|
|
|
13,351,517.33
|
|
|
|
33,378,793.34
|
|
|
|
14,343,380.21
|
|
|
|
247,003,070.71
|
|
|
28-May-14
|
|
|
200,272,760.04
|
|
|
|
13,351,517.33
|
|
|
|
30,040,914.01
|
|
|
|
16,689,396.66
|
|
|
|
230,313,674.05
|
|
|
|
|
|
|
|
200,272,760.04
|
|
|
|
13,351,517.33
|
|
|
|
30,040,914.01
|
|
|
|
16,689,396.66
|
|
|
|
230,313,674.05
|
|
|
28-Nov-14
|
|
|
186,921,242.71
|
|
|
|
13,351,517.33
|
|
|
|
26,703,034.68
|
|
|
|
16,689,396.66
|
|
|
|
213,624,277.39
|
|
|
|
|
|
|
|
186,921,242.71
|
|
|
|
13,351,517.33
|
|
|
|
26,703,034.68
|
|
|
|
16,689,396.66
|
|
|
|
213,624,277.39
|
|
|
28-May-15
|
|
|
173,569,725.38
|
|
|
|
13,351,517.33
|
|
|
|
23,365,155.35
|
|
|
|
16,689,396.66
|
|
|
|
196,934,880.73
|
|
|
|
|
|
|
|
173,569,725.38
|
|
|
|
13,351,517.33
|
|
|
|
23,365,155.35
|
|
|
|
16,689,396.66
|
|
|
|
196,934,880.73
|
|
|
30-Nov-15
|
|
|
160,218,208.05
|
|
|
|
13,351,517.33
|
|
|
|
20,027,276.02
|
|
|
|
16,689,396.66
|
|
|
|
180,245,484.07
|
|
|
|
|
|
|
|
160,218,208.05
|
|
|
|
13,351,517.33
|
|
|
|
20,027,276.02
|
|
|
|
16,689,396.66
|
|
|
|
180,245,484.07
|
|
|
31-May-16
|
|
|
146,866,690.72
|
|
|
|
13,351,517.33
|
|
|
|
16,689,396.69
|
|
|
|
16,689,396.66
|
|
|
|
163,556,087.41
|
|
|
|
|
|
|
|
146,866,690.72
|
|
|
|
13,351,517.33
|
|
|
|
16,689,396.69
|
|
|
|
16,689,396.66
|
|
|
|
163,556,087.41
|
|
|
28-May-16
|
|
|
133,515,173.39
|
|
|
|
13,351,517.33
|
|
|
|
13,351,517.36
|
|
|
|
16,689,396.66
|
|
|
|
146,866,690.75
|
|
|
|
|
|
|
|
133,515,173.39
|
|
|
|
13,351,517.33
|
|
|
|
13,351,517.36
|
|
|
|
16,689,396.66
|
|
|
|
146,866,690.75
|
|
|
30-May-17
|
|
|
120,163,656.06
|
|
|
|
13,351,517.33
|
|
|
|
10,013,638.03
|
|
|
|
16,689,396.66
|
|
|
|
130,177,294.09
|
|
|
|
|
|
|
|
120,163,656.06
|
|
|
|
13,351,517.33
|
|
|
|
10,013,638.03
|
|
|
|
16,689,396.66
|
|
|
|
130,177,294.09
|
|
|
28-Nov-17
|
|
|
106,812,138.73
|
|
|
|
13,351,517.33
|
|
|
|
6,675,758.70
|
|
|
|
16,689,396.66
|
|
|
|
113,487,897.43
|
|
|
|
|
|
|
|
106,812,138.73
|
|
|
|
13,351,517.33
|
|
|
|
6,675,758.70
|
|
|
|
16,689,396.66
|
|
|
|
113,487,897.43
|
|
|
29-May-18
|
|
|
93,460,621.40
|
|
|
|
13,351,517.33
|
|
|
|
3,337,879.37
|
|
|
|
16,689,396.66
|
|
|
|
96,798,500.77
|
|
|
|
|
|
|
|
93,460,621.40
|
|
|
|
13,351,517.33
|
|
|
|
3,337,879.37
|
|
|
|
16,689,396.66
|
|
|
|
96,798,500.77
|
|
|
28-Nov-18
|
|
|
—
|
|
|
|
93,460,621.40
|
|
|
|
—
|
|
|
|
96,798,500.77
|
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
93,460,621.40
|
|
|
|
—
|
|
|
|
96,798,500.77
|
|
|
|
—
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tranche B:
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
1-Apr-10
|
|
|
335,504,065.67
|
|
|
|
13,420,163.00
|
|
|
|
40,260,489.00
|
|
|
|
|
|
|
|
375,764,554.67
|
|
|
|
335,504,065.67
|
|
|
|
13,420,163.00
|
|
|
|
40,260,489.00
|
|
|
|
|
|
|
|
375,764,554.67
|
|
|
Amendment
Prepayment
|
|
|
335,504,065.67
|
|
|
|
|
|
|
|
40,260,489.00
|
|
|
|
|
|
|
|
375,764,554.67
|
|
|
|
335,504,065.67
|
|
|
|
|
|
|
|
21,127,206.97
|
|
|
|
19,133,282.03
|
|
|
|
356,631,272.64
|
|
|
1-Oct-10
|
|
|
322,083,902.67
|
|
|
|
13,420,163.00
|
|
|
|
53,680,652.00
|
|
|
|
—
|
|
|
|
375,764,554.67
|
|
|
|
322,083,902.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
—
|
|
|
|
356,631,272.64
|
|
|
1-Apr-11
|
|
|
308,663,739.67
|
|
|
|
13,420,163.00
|
|
|
|
50,698,393.56
|
|
|
|
16,402,421.44
|
|
|
|
359,362,133.23
|
|
|
|
308,663,739.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
343,211,109.64
|
|
|
3-Oct-11
|
|
|
295,243,576.67
|
|
|
|
13,420,163.00
|
|
|
|
47,716,135.12
|
|
|
|
16,402,421.44
|
|
|
|
342,959,711.79
|
|
|
|
295,243,576.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
329,790,946.64
|
|
|
2-Apr-12
|
|
|
281,823,413.67
|
|
|
|
13,420,163.00
|
|
|
|
44,733,876.68
|
|
|
|
16,402,421.44
|
|
|
|
326,557,290.35
|
|
|
|
281,823,413.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
316,370,783.64
|
|
|
1-Oct-12
|
|
|
268,403,250.67
|
|
|
|
13,420,163.00
|
|
|
|
41,751,618.24
|
|
|
|
16,402,421.44
|
|
|
|
310,154,868.91
|
|
|
|
268,403,250.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
302,950,620.64
|
|
|
1-Apr-13
|
|
|
254,983,087.67
|
|
|
|
13,420,163.00
|
|
|
|
38,769,359.80
|
|
|
|
16,402,421.44
|
|
|
|
293,752,447.47
|
|
|
|
254,983,087.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
289,530,457.64
|
|
|
1-Oct-13
|
|
|
241,562,924.67
|
|
|
|
13,420,163.00
|
|
|
|
35,787,101.36
|
|
|
|
16,402,421.44
|
|
|
|
277,350,026.03
|
|
|
|
241,562,924.67
|
|
|
|
13,420,163.00
|
|
|
|
34,547,369.97
|
|
|
|
13,420,163.00
|
|
|
|
276,110,294.64
|
|
|
1-Apr-14
|
|
|
228,142,761.67
|
|
|
|
13,420,163.00
|
|
|
|
32,804,842.92
|
|
|
|
16,402,421.44
|
|
|
|
260,947,604.59
|
|
|
|
228,142,761.67
|
|
|
|
13,420,163.00
|
|
|
|
32,804,842.92
|
|
|
|
15,162,690.05
|
|
|
|
260,947,604.59
|
|
|
1-Oct-14
|
|
|
214,722,598.67
|
|
|
|
13,420,163.00
|
|
|
|
29,822,584.48
|
|
|
|
16,402,421.44
|
|
|
|
244,545,183.15
|
|
|
|
214,722,598.67
|
|
|
|
13,420,163.00
|
|
|
|
29,822,584.48
|
|
|
|
16,402,421.44
|
|
|
|
244,545,183.15
|
|
|
1-Apr-15
|
|
|
201,302,435.67
|
|
|
|
13,420,163.00
|
|
|
|
26,840,326.04
|
|
|
|
16,402,421.44
|
|
|
|
228,142,761.71
|
|
|
|
201,302,435.67
|
|
|
|
13,420,163.00
|
|
|
|
26,840,326.04
|
|
|
|
16,402,421.44
|
|
|
|
228,142,761.71
|
|
|
1-Oct-15
|
|
|
187,882,272.67
|
|
|
|
13,420,163.00
|
|
|
|
23,858,067.60
|
|
|
|
16,402,421.44
|
|
|
|
211,740,340.27
|
|
|
|
187,882,272.67
|
|
|
|
13,420,163.00
|
|
|
|
23,858,067.60
|
|
|
|
16,402,421.44
|
|
|
|
211,740,340.27
|
|
|
1-Apr-16
|
|
|
174,462,109.67
|
|
|
|
13,420,163.00
|
|
|
|
20,875,809.16
|
|
|
|
16,402,421.44
|
|
|
|
195,337,918.83
|
|
|
|
174,462,109.67
|
|
|
|
13,420,163.00
|
|
|
|
20,875,809.16
|
|
|
|
16,402,421.44
|
|
|
|
195,337,918.83
|
|
|
3-Oct-16
|
|
|
161,041,946.67
|
|
|
|
13,420,163.00
|
|
|
|
17,893,550.72
|
|
|
|
16,402,421.44
|
|
|
|
178,935,497.39
|
|
|
|
161,041,946.67
|
|
|
|
13,420,163.00
|
|
|
|
17,893,550.72
|
|
|
|
16,402,421.44
|
|
|
|
178,935,497.39
|
|
|
3-Apr-17
|
|
|
147,621,783.67
|
|
|
|
13,420,163.00
|
|
|
|
14,911,292.28
|
|
|
|
16,402,421.44
|
|
|
|
162,533,075.95
|
|
|
|
147,621,783.67
|
|
|
|
13,420,163.00
|
|
|
|
14,911,292.28
|
|
|
|
16,402,421.44
|
|
|
|
162,533,075.95
|
|
|
2-Oct-17
|
|
|
134,201,620.67
|
|
|
|
13,420,163.00
|
|
|
|
11,929,033.84
|
|
|
|
16,402,421.44
|
|
|
|
146,130,654.51
|
|
|
|
134,201,620.67
|
|
|
|
13,420,163.00
|
|
|
|
11,929,033.84
|
|
|
|
16,402,421.44
|
|
|
|
146,130,654.51
|
|
|
2-Apr-18
|
|
|
120,781,457.67
|
|
|
|
13,420,163.00
|
|
|
|
8,946,775.40
|
|
|
|
16,402,421.44
|
|
|
|
129,728,233.07
|
|
|
|
120,781,457.67
|
|
|
|
13,420,163.00
|
|
|
|
8,946,775.40
|
|
|
|
16,402,421.44
|
|
|
|
129,728,233.07
|
|
|
1-Oct-18
|
|
|
107,361,294.67
|
|
|
|
13,420,163.00
|
|
|
|
5,964,516.96
|
|
|
|
16,402,421.44
|
|
|
|
113,325,811.63
|
|
|
|
107,361,294.67
|
|
|
|
13,420,163.00
|
|
|
|
5,964,516.96
|
|
|
|
16,402,421.44
|
|
|
|
113,325,811.63
|
|
|
1-Apr-19
|
|
|
93,941,131.67
|
|
|
|
13,420,163.00
|
|
|
|
2,982,258.52
|
|
|
|
16,402,421.44
|
|
|
|
96,923,390.19
|
|
|
|
93,941,131.67
|
|
|
|
13,420,163.00
|
|
|
|
2,982,258.52
|
|
|
|
16,402,421.44
|
|
|
|
96,923,390.19
|
|
|
1-Oct-19
|
|
|
—
|
|
|
|
93,941,131.67
|
|
|
|
—
|
|
|
|
96,923,390.19
|
|
|
|
—
|
|
|
|
—
|
|
|
|
93,941,131.67
|
|
|
|
—
|
|
|
|
96,923,390.19
|
|
|
|
—
|
|
24
Schedule 4
Reduction Schedules for the purpose of calculating the amount of the Applicable Margin payable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tranche A:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
28-May-10
|
|
|
307,084,898.68
|
|
|
|
13,351,517.33
|
|
|
|
40,054,551.99
|
|
|
|
—
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
307,084,898.68
|
|
|
|
13,351,517.33
|
|
|
|
40,054,551.99
|
|
|
|
—
|
|
|
|
347,139,450.67
|
|
|
Amendment
Prepayment
|
|
|
307,084,898.68
|
|
|
|
—
|
|
|
|
40,054,551.99
|
|
|
|
—
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
291,856,568.20
|
|
|
|
|
|
|
|
36,247,469.37
|
|
|
|
19,035,413.10
|
|
|
|
328,104,037.57
|
|
|
29-Nov-10
|
|
|
293,733,381.35
|
|
|
|
13,351,517.33
|
|
|
|
53,406,069.32
|
|
|
|
—
|
|
|
|
347,139,450.67
|
|
|
|
|
|
|
|
278,505,050.87
|
|
|
|
13,351,517.33
|
|
|
|
49,598,986.70
|
|
|
|
—
|
|
|
|
328,104,037.57
|
|
|
31-May-11
|
|
|
280,381,864.02
|
|
|
|
13,351,517.33
|
|
|
|
50,068,189.99
|
|
|
|
16,689,396.66
|
|
|
|
330,450,054.01
|
|
|
|
|
|
|
|
267,823,837.00
|
|
|
|
13,351,517.33
|
|
|
|
46,928,683.24
|
|
|
|
13,351,517.33
|
|
|
|
314,752,520.24
|
|
|
28-Nov-11
|
|
|
267,030,346.69
|
|
|
|
13,351,517.33
|
|
|
|
46,730,310.66
|
|
|
|
16,689,396.66
|
|
|
|
313,760,657.35
|
|
|
|
|
|
|
|
257,142,623.14
|
|
|
|
13,351,517.33
|
|
|
|
44,258,379.77
|
|
|
|
13,351,517.33
|
|
|
|
301,401,002.91
|
|
|
29-May-12
|
|
|
253,678,829.36
|
|
|
|
13,351,517.33
|
|
|
|
43,392,431.33
|
|
|
|
16,689,396.66
|
|
|
|
297,071,260.69
|
|
|
|
|
|
|
|
246,461,409.27
|
|
|
|
13,351,517.33
|
|
|
|
41,588,076.31
|
|
|
|
13,351,517.33
|
|
|
|
288,049,485.58
|
|
|
28-Nov-12
|
|
|
240,327,312.03
|
|
|
|
13,351,517.33
|
|
|
|
40,054,552.00
|
|
|
|
16,689,396.66
|
|
|
|
280,381,864.03
|
|
|
|
|
|
|
|
235,780,195.41
|
|
|
|
13,351,517.33
|
|
|
|
38,917,772.84
|
|
|
|
13,351,517.33
|
|
|
|
274,697,968.25
|
|
|
28-May-13
|
|
|
226,975,794.70
|
|
|
|
13,351,517.33
|
|
|
|
36,716,672.67
|
|
|
|
16,689,396.66
|
|
|
|
263,692,467.37
|
|
|
|
|
|
|
|
225,098,981.54
|
|
|
|
13,351,517.33
|
|
|
|
36,247,469.38
|
|
|
|
13,351,517.33
|
|
|
|
261,346,450.92
|
|
|
29-Nov-13
|
|
|
213,624,277.37
|
|
|
|
13,351,517.33
|
|
|
|
33,378,793.34
|
|
|
|
16,689,396.66
|
|
|
|
247,003,070.71
|
|
|
|
|
|
|
|
213,624,277.37
|
|
|
|
13,351,517.33
|
|
|
|
33,378,793.34
|
|
|
|
14,343,380.21
|
|
|
|
247,003,070.71
|
|
|
28-May-14
|
|
|
200,272,760.04
|
|
|
|
13,351,517.33
|
|
|
|
30,040,914.01
|
|
|
|
16,689,396.66
|
|
|
|
230,313,674.05
|
|
|
|
|
|
|
|
200,272,760.04
|
|
|
|
13,351,517.33
|
|
|
|
30,040,914.01
|
|
|
|
16,689,396.66
|
|
|
|
230,313,674.05
|
|
|
28-Nov-14
|
|
|
186,921,242.71
|
|
|
|
13,351,517.33
|
|
|
|
26,703,034.68
|
|
|
|
16,689,396.66
|
|
|
|
213,624,277.39
|
|
|
|
|
|
|
|
186,921,242.71
|
|
|
|
13,351,517.33
|
|
|
|
26,703,034.68
|
|
|
|
16,689,396.66
|
|
|
|
213,624,277.39
|
|
|
28-May-15
|
|
|
173,569,725.38
|
|
|
|
13,351,517.33
|
|
|
|
23,365,155.35
|
|
|
|
16,689,396.66
|
|
|
|
196,934,880.73
|
|
|
|
|
|
|
|
173,569,725.38
|
|
|
|
13,351,517.33
|
|
|
|
23,365,155.35
|
|
|
|
16,689,396.66
|
|
|
|
196,934,880.73
|
|
|
30-Nov-15
|
|
|
160,218,208.05
|
|
|
|
13,351,517.33
|
|
|
|
20,027,276.02
|
|
|
|
16,689,396.66
|
|
|
|
180,245,484.07
|
|
|
|
|
|
|
|
160,218,208.05
|
|
|
|
13,351,517.33
|
|
|
|
20,027,276.02
|
|
|
|
16,689,396.66
|
|
|
|
180,245,484.07
|
|
|
31-May-16
|
|
|
146,866,690.72
|
|
|
|
13,351,517.33
|
|
|
|
16,689,396.69
|
|
|
|
16,689,396.66
|
|
|
|
163,556,087.41
|
|
|
|
|
|
|
|
146,866,690.72
|
|
|
|
13,351,517.33
|
|
|
|
16,689,396.69
|
|
|
|
16,689,396.66
|
|
|
|
163,556,087.41
|
|
|
28-May-16
|
|
|
133,515,173.39
|
|
|
|
13,351,517.33
|
|
|
|
13,351,517.36
|
|
|
|
16,689,396.66
|
|
|
|
146,866,690.75
|
|
|
|
|
|
|
|
133,515,173.39
|
|
|
|
13,351,517.33
|
|
|
|
13,351,517.36
|
|
|
|
16,689,396.66
|
|
|
|
146,866,690.75
|
|
|
30-May-17
|
|
|
120,163,656.06
|
|
|
|
13,351,517.33
|
|
|
|
10,013,638.03
|
|
|
|
16,689,396.66
|
|
|
|
130,177,294.09
|
|
|
|
|
|
|
|
120,163,656.06
|
|
|
|
13,351,517.33
|
|
|
|
10,013,638.03
|
|
|
|
16,689,396.66
|
|
|
|
130,177,294.09
|
|
|
28-Nov-17
|
|
|
106,812,138.73
|
|
|
|
13,351,517.33
|
|
|
|
6,675,758.70
|
|
|
|
16,689,396.66
|
|
|
|
113,487,897.43
|
|
|
|
|
|
|
|
106,812,138.73
|
|
|
|
13,351,517.33
|
|
|
|
6,675,758.70
|
|
|
|
16,689,396.66
|
|
|
|
113,487,897.43
|
|
|
29-May-18
|
|
|
93,460,621.40
|
|
|
|
13,351,517.33
|
|
|
|
3,337,879.37
|
|
|
|
16,689,396.66
|
|
|
|
96,798,500.77
|
|
|
|
|
|
|
|
93,460,621.40
|
|
|
|
13,351,517.33
|
|
|
|
3,337,879.37
|
|
|
|
16,689,396.66
|
|
|
|
96,798,500.77
|
|
|
28-Nov-18
|
|
|
—
|
|
|
|
93,460,621.40
|
|
|
|
—
|
|
|
|
96,798,500.77
|
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
93,460,621.40
|
|
|
|
—
|
|
|
|
96,798,500.77
|
|
|
|
—
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tranche B:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing Schedule
|
|
|
Revised Schedule (after giving effect to USD100,000,000 prepayment)
|
|
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
Ordinary
Principal
Amount
|
|
|
Originally
Scheduled
Reductions
|
|
|
Delayed Principal
Amount
|
|
|
New Revised
Reductions
|
|
|
Revised Principal
Amount
|
|
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
USD
|
|
|
1-Apr-10
|
|
|
335,504,065.67
|
|
|
|
13,420,163.00
|
|
|
|
40,260,489.00
|
|
|
|
—
|
|
|
|
375,764,554.67
|
|
|
|
335,504,065.67
|
|
|
|
13,420,163.00
|
|
|
|
40,260,489.00
|
|
|
|
—
|
|
|
|
375,764,554.67
|
|
|
Amendment
Prepayment
|
|
|
335,504,065.67
|
|
|
|
—
|
|
|
|
40,260,489.00
|
|
|
|
—
|
|
|
|
375,764,554.67
|
|
|
|
319,849,562.19
|
|
|
|
|
|
|
|
36,781,710.45
|
|
|
|
19,133,282.03
|
|
|
|
356,631,272.64
|
|
|
1-Oct-10
|
|
|
322,083,902.67
|
|
|
|
13,420,163.00
|
|
|
|
53,680,652.00
|
|
|
|
—
|
|
|
|
375,764,554.67
|
|
|
|
306,429,399.19
|
|
|
|
13,420,163.00
|
|
|
|
50,201,873.45
|
|
|
|
—
|
|
|
|
356,631,272.64
|
|
|
1-Apr-11
|
|
|
308,663,739.67
|
|
|
|
13,420,163.00
|
|
|
|
50,698,393.56
|
|
|
|
16,402,421.44
|
|
|
|
359,362,133.23
|
|
|
|
295,449,265.82
|
|
|
|
13,420,163.00
|
|
|
|
47,761,843.82
|
|
|
|
13,420,163.00
|
|
|
|
343,211,109.64
|
|
|
3-Oct-11
|
|
|
295,243,576.67
|
|
|
|
13,420,163.00
|
|
|
|
47,716,135.12
|
|
|
|
16,402,421.44
|
|
|
|
342,959,711.79
|
|
|
|
284,469,132.46
|
|
|
|
13,420,163.00
|
|
|
|
45,321,814.19
|
|
|
|
13,420,163.00
|
|
|
|
329,790,946.64
|
|
|
2-Apr-12
|
|
|
281,823,413.67
|
|
|
|
13,420,163.00
|
|
|
|
44,733,876.68
|
|
|
|
16,402,421.44
|
|
|
|
326,557,290.35
|
|
|
|
273,488,999.09
|
|
|
|
13,420,163.00
|
|
|
|
42,881,784.55
|
|
|
|
13,420,163.00
|
|
|
|
316,370,783.64
|
|
|
1-Oct-12
|
|
|
268,403,250.67
|
|
|
|
13,420,163.00
|
|
|
|
41,751,618.24
|
|
|
|
16,402,421.44
|
|
|
|
310,154,868.91
|
|
|
|
262,508,865.72
|
|
|
|
13,420,163.00
|
|
|
|
40,441,754.92
|
|
|
|
13,420,163.00
|
|
|
|
302,950,620.64
|
|
|
1-Apr-13
|
|
|
254,983,087.67
|
|
|
|
13,420,163.00
|
|
|
|
38,769,359.80
|
|
|
|
16,402,421.44
|
|
|
|
293,752,447.47
|
|
|
|
251,528,732.36
|
|
|
|
13,420,163.00
|
|
|
|
38,001,725.29
|
|
|
|
13,420,163.00
|
|
|
|
289,530,457.64
|
|
|
1-Oct-13
|
|
|
241,562,924.67
|
|
|
|
13,420,163.00
|
|
|
|
35,787,101.36
|
|
|
|
16,402,421.44
|
|
|
|
277,350,026.03
|
|
|
|
240,548,598.99
|
|
|
|
13,420,163.00
|
|
|
|
35,561,695.65
|
|
|
|
13,420,163.00
|
|
|
|
276,110,294.64
|
|
|
1-Apr-14
|
|
|
228,142,761.67
|
|
|
|
13,420,163.00
|
|
|
|
32,804,842.92
|
|
|
|
16,402,421.44
|
|
|
|
260,947,604.59
|
|
|
|
228,142,761.67
|
|
|
|
13,420,163.00
|
|
|
|
32,804,842.92
|
|
|
|
15,162,690.05
|
|
|
|
260,947,604.59
|
|
|
1-Oct-14
|
|
|
214,722,598.67
|
|
|
|
13,420,163.00
|
|
|
|
29,822,584.48
|
|
|
|
16,402,421.44
|
|
|
|
244,545,183.15
|
|
|
|
214,722,598.67
|
|
|
|
13,420,163.00
|
|
|
|
29,822,584.48
|
|
|
|
16,402,421.44
|
|
|
|
244,545,183.15
|
|
|
1-Apr-15
|
|
|
201,302,435.67
|
|
|
|
13,420,163.00
|
|
|
|
26,840,326.04
|
|
|
|
16,402,421.44
|
|
|
|
228,142,761.71
|
|
|
|
201,302,435.67
|
|
|
|
13,420,163.00
|
|
|
|
26,840,326.04
|
|
|
|
16,402,421.44
|
|
|
|
228,142,761.71
|
|
|
1-Oct-15
|
|
|
187,882,272.67
|
|
|
|
13,420,163.00
|
|
|
|
23,858,067.60
|
|
|
|
16,402,421.44
|
|
|
|
211,740,340.27
|
|
|
|
187,882,272.67
|
|
|
|
13,420,163.00
|
|
|
|
23,858,067.60
|
|
|
|
16,402,421.44
|
|
|
|
211,740,340.27
|
|
|
1-Apr-16
|
|
|
174,462,109.67
|
|
|
|
13,420,163.00
|
|
|
|
20,875,809.16
|
|
|
|
16,402,421.44
|
|
|
|
195,337,918.83
|
|
|
|
174,462,109.67
|
|
|
|
13,420,163.00
|
|
|
|
20,875,809.16
|
|
|
|
16,402,421.44
|
|
|
|
195,337,918.83
|
|
|
3-Oct-16
|
|
|
161,041,946.67
|
|
|
|
13,420,163.00
|
|
|
|
17,893,550.72
|
|
|
|
16,402,421.44
|
|
|
|
178,935,497.39
|
|
|
|
161,041,946.67
|
|
|
|
13,420,163.00
|
|
|
|
17,893,550.72
|
|
|
|
16,402,421.44
|
|
|
|
178,935,497.39
|
|
|
3-Apr-17
|
|
|
147,621,783.67
|
|
|
|
13,420,163.00
|
|
|
|
14,911,292.28
|
|
|
|
16,402,421.44
|
|
|
|
162,533,075.95
|
|
|
|
147,621,783.67
|
|
|
|
13,420,163.00
|
|
|
|
14,911,292.28
|
|
|
|
16,402,421.44
|
|
|
|
162,533,075.95
|
|
|
2-Oct-17
|
|
|
134,201,620.67
|
|
|
|
13,420,163.00
|
|
|
|
11,929,033.84
|
|
|
|
16,402,421.44
|
|
|
|
146,130,654.51
|
|
|
|
134,201,620.67
|
|
|
|
13,420,163.00
|
|
|
|
11,929,033.84
|
|
|
|
16,402,421.44
|
|
|
|
146,130,654.51
|
|
|
2-Apr-18
|
|
|
120,781,457.67
|
|
|
|
13,420,163.00
|
|
|
|
8,946,775.40
|
|
|
|
16,402,421.44
|
|
|
|
129,728,233.07
|
|
|
|
120,781,457.67
|
|
|
|
13,420,163.00
|
|
|
|
8,946,775.40
|
|
|
|
16,402,421.44
|
|
|
|
129,728,233.07
|
|
|
1-Oct-18
|
|
|
107,361,294.67
|
|
|
|
13,420,163.00
|
|
|
|
5,964,516.96
|
|
|
|
16,402,421.44
|
|
|
|
113,325,811.63
|
|
|
|
107,361,294.67
|
|
|
|
13,420,163.00
|
|
|
|
5,964,516.96
|
|
|
|
16,402,421.44
|
|
|
|
113,325,811.63
|
|
|
1-Apr-19
|
|
|
93,941,131.67
|
|
|
|
13,420,163.00
|
|
|
|
2,982,258.52
|
|
|
|
16,402,421.44
|
|
|
|
96,923,390.19
|
|
|
|
93,941,131.67
|
|
|
|
13,420,163.00
|
|
|
|
2,982,258.52
|
|
|
|
16,402,421.44
|
|
|
|
96,923,390.19
|
|
|
1-Oct-19
|
|
|
—
|
|
|
|
93,941,131.67
|
|
|
|
—
|
|
|
|
96,923,390.19
|
|
|
|
—
|
|
|
|
—
|
|
|
|
93,941,131.67
|
|
|
|
—
|
|
|
|
96,923,390.19
|
|
|
|
—
|
|
26
Exhibit 10.41
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 9 JUNE 2010
NORWEGIAN EPIC, LTD.
(formerly known as
F3 TWO, LTD.)
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
BNP PARIBAS
Paris
(as agent)
FOURTH
SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
LOAN AGREEMENT
dated 22 September 2006
for the amount of up to EUR662,905,320
post delivery finance for
a passenger cruise vessel having hull no. D33
at the yard of Aker Yards S.A. (now known as STX France S.A.)
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/45-01178/45-01079/46-01271/47-02890/48-03440
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
1
|
|
Definitions and Construction
|
|
|
1
|
|
|
|
|
|
|
2
|
|
Amendment and/or Restatement of Original Loan Agreement and Other Security Documents
|
|
|
2
|
|
|
|
|
|
|
3
|
|
Conditions Precedent and Subsequent
|
|
|
3
|
|
|
|
|
|
|
4
|
|
Representations and Warranties
|
|
|
5
|
|
|
|
|
|
|
5
|
|
Expenses
|
|
|
6
|
|
|
|
|
|
|
6
|
|
Further Assurance
|
|
|
6
|
|
|
|
|
|
|
7
|
|
Counterparts
|
|
|
6
|
|
|
|
|
|
|
8
|
|
Notices
|
|
|
7
|
|
|
|
|
|
|
9
|
|
Governing Law
|
|
|
7
|
|
|
|
|
|
|
10
|
|
Jurisdiction
|
|
|
7
|
|
|
|
|
|
|
Schedule 1
|
|
The Agent and the Lenders
|
|
|
11
|
|
|
|
|
|
|
Schedule 2
|
|
Loan Agreement
|
|
|
12
|
|
FOURTH SUPPLEMENTAL DEED
DATED 9 JUNE 2010
BETWEEN:
|
(1)
|
NORWEGIAN EPIC, LTD.
(formerly known as F3 Two, Ltd.), a company incorporated in and existing under the laws of Bermuda with registration number EC38768 and with
its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as borrower (the
“Borrower”
);
|
|
(2)
|
NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the
“Guarantor”
);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“Lender”
); and
|
|
(4)
|
BNP PARIBAS
, Paris as agent for the lenders (the
“Agent”
).
|
WHEREAS:
|
(A)
|
By a loan agreement dated 22 September 2006 as amended and restated by a first supplemental deed thereto dated 21 December 2007 and as further amended and
restated by a third supplemental deed thereto dated 2 April 2009 entered into between (among others) the Borrower as borrower, the Lenders as lenders and the Agent as agent for (among others) the Lenders (the
“Original Loan
Agreement”
), the Lenders granted to the Borrower a secured loan in the maximum amount of six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320) (the
“Loan”
) for the
purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has
been secured by a guarantee and indemnity dated 6 October 2006 as amended and restated by a first supplemental deed thereto dated 21 December 2007 and as further amended and restated by a third supplemental deed thereto dated 2 April
2009 granted by the Guarantor (the
“Original Guarantee”
).
|
|
(B)
|
The Borrower and the Guarantor have requested the consent of the Lenders and the Agent to the conversion of the Loan to Dollars at a floating rate of interest.
|
|
(C)
|
The consent of the Lenders and the Agent is given in respect of the above matter on the terms of this fourth supplement to the Original Loan Agreement (this
“Deed”
) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“Loan Agreement”
means the Original Loan Agreement as amended and
restated by this Deed and as set out in Schedule 2;
“New Process Agent”
means EC3 Services Limited whose registered office is
presently at 51 Eastcheap, London EC3M 1JP; and
“Third Restatement Date”
means the date on which the
conditions precedent set out in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.3.
|
|
1.2
|
The provisions of clause 1.2 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment and/or Restatement of Original Loan Agreement and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Third Restatement Date the Original Loan Agreement shall be amended and
restated to read in accordance with the amended and restated facility agreement as set out in Schedule 2 and (as so amended and restated) will continue to be binding upon each of the parties thereto in accordance with its terms as so amended and
restated.
|
|
|
2.2
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders and the Agent that with effect from the Third Restatement Date:
|
|
|
2.2.1
|
all references to the Original Loan Agreement in the other Security Documents shall be construed as references to the Loan Agreement and all terms used in such Security
Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.2.2
|
the Security Documents shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement, until it has been
repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or
of any of the documents or transactions contemplated hereby and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
2
|
3
|
Conditions Precedent and Subsequent
|
|
|
3.1
|
The amendment and restatement of the Original Loan Agreement provided for in Clause 2 is conditional upon and shall not be effective unless and until the Agent has
received the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed;
|
|
|
(c)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the
“Relevant Parties”
):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant
Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
3
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
3.1.2
|
receipt by the Agent of the amendment to the Coface Insurance Policy necessary to reflect the conversion of the Loan to Dollars at a floating rate of interest, together
with confirmation of the Agent that the Coface Insurance Policy as amended is in full force and effect;
|
|
|
3.1.3
|
a Certified Copy of the letters of election dated 27 August 2009 and 24 May 2010 from the Builder to the Borrower and the Guarantor pursuant to which the
Intended Delivery Date of the Vessel under the Building Contract is postponed to 17 June 2010;
|
|
|
3.1.4
|
evidence that all sums owing to the Agent and the Lenders pursuant to Clause 5 of this Deed have been received; and
|
|
|
3.1.5
|
agreement to the issue of such favourable written legal opinions including by Conyers Dill & Pearman in respect of Bermuda and Stephenson Harwood in respect of
England in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Third Restatement Date (subject to Clause 3.3).
|
|
3.2
|
The Borrower shall pay to each of the Lenders within three (3) Business Days of the execution of this Deed by the Agent and the Lenders a non-refundable fee of [*]
in accordance with the amendment or waiver fee letter dated 1 April 2009 between the Agent, the Borrower and the Guarantor. Notwithstanding any provision of this Deed, the Original Loan Agreement or the Loan Agreement to the contrary, no Lender
shall be required to share with the other Lenders and/or the Agent any such amendment fee received.
|
|
|
3.3
|
If the Agent in accordance with clause 20 of the Original Loan Agreement decides to permit the amendment and restatement of the Original Loan Agreement
hereby
|
4
|
|
without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen
(14) days of the Third Restatement Date (or such other period as the Agent may stipulate) and the amendment and restatement of the Original Loan Agreement as aforesaid shall not be construed as a waiver of the Agent’s right to receive the
documents or evidence as aforesaid nor shall this provision impose on the Agent or the Lenders any obligation to permit the amendment and restatement in the absence of such documents or evidence.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders and the Agent that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Lenders and/or the Agent;
|
|
4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
5
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders and/or the Agent in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for all charges and expenses (together with
value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent in respect of, or in connection with, the negotiation, preparation, printing, execution,
registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.2
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent and the Lenders on demand of the Agent on a full indemnity basis for all charges
and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent and/or the Lenders in respect of this Deed or in connection with the enforcement
of, or the preservation of any rights under, this Deed or any of the Security Documents. It is expressly agreed that all such charges and expenses incurred by the Agent or a Lender to determine the position should this Deed not be executed or become
effective or should the Guarantor or any of its subsidiaries file for bankruptcy under the US Bankruptcy Code or similar legislation in any other applicable jurisdiction, shall be reimbursed on demand of the Agent on a full indemnity basis. Nothing
in this Clause 5.2 shall prevent the Agent and the Lenders from obtaining advice (or an update of any previously obtained advice) after the Third Restatement Date in relation to the Borrower or any of its subsidiaries filing for bankruptcy
under the US Bankruptcy Code or similar legislation in any other applicable jurisdiction if in connection with the enforcement of, or the preservation of any rights under, the Original Loan Agreement, the Loan Agreement and the other Security
Documents, pursuant to clause 8.4 of the Loan Agreement.
|
|
|
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or
procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders and/or the
Agent the full benefit of the rights, powers and remedies conferred upon the Lenders and/or the Agent in any such document.
|
|
|
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
6
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed
shall (unless the Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126,
United States of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57
th
Street, 43
rd
Floor, New York, NY 10019, United States of America (marked for the attention of Mr Steven Martinez). Any notice,
demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days’ written notice to the Borrower and the Guarantor specified another address) be
made or delivered to the Agent at ECEP/Export Finance, ACI: CHDESA1, 37 Place du Marché Saint-Honoré, 75031 Paris Cedex 01, France (marked for the attention of Mrs Dominique Laplasse (Team Head)/Mr Jean Philippe Poirier).
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steven Martinez) and in respect of the Agent is +33 01 4316 8184/+33 01 4298 0029 (marked for the attention of Mrs Dominique Laplasse (Team Head)/Mr Jean Philippe
Poirier)) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent by the Borrower or the
Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to
be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent to the Borrower and the Guarantor.
|
|
|
8.3
|
Subject to Clause 8.2, the provisions of clause 27 of the Original Loan Agreement shall apply to this Deed.
|
|
|
This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed, (a
“Dispute”
). Each party to this Deed agrees that the courts
of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary.
|
7
This Clause 10.1 is for the benefit of the Agent and the Lenders only. As a result, no such
party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions.
|
|
10.2
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.3
|
Neither of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process
Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.4
|
For the purpose of securing its obligations under Clause 10.3, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.3, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.3.
|
|
|
10.5
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent or the Lenders may have (whether under the laws of any country, an international convention or
otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
8
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day
and year first before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Kevin M. Sheehan
|
|
)
|
|
a Director, for and on behalf of
|
|
) /s/ Kevin M. Sheehan
|
|
NORWEGIAN EPIC, LTD.
(formerly known as
|
|
)
|
|
F3 Two, Ltd.)
|
|
)
|
|
in the presence of: /s/ Daniel S. Farkas
|
|
)
|
|
Daniel S. Farkas
|
|
|
|
Senior Vice President, General Counsel
|
|
|
|
7665 Corporate Center Drive
|
|
|
|
Miami, FL 33126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Walter Revell
|
|
)
|
|
a Director, for and on behalf of
|
|
) /s/ Walter Revell
|
|
NCL CORPORATION LTD.
|
|
)
|
|
in the presence of: /s/ Jared G. Silberhorn
|
|
)
|
|
Jared G. Silberhorn
|
|
|
|
7665 Corporate Center Drive
|
|
|
|
Miami, FL 33126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
BNP PARIBAS
|
|
)
|
|
as a Lender and the Agent
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
David Griffiths
|
|
|
|
One St. Paul’s Churchyard
|
|
|
|
London
|
|
|
|
EC4M 8SH
|
|
|
9
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
CREDIT AGRICOLE CORPORATE
|
|
)
|
|
& INVESTMENT BANK
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
HSBC FRANCE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
As Above
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
By Julie M. Clegg
|
|
)
|
|
for and on behalf of
|
|
) /s/ Julie M. Clegg
|
|
SOCIETE GENERALE
|
|
)
|
|
in the presence of:
|
|
)
|
|
/s/ David Griffiths
|
|
|
|
As Above
|
|
|
10
Schedule 1
The Agent and the Lenders
|
|
|
|
|
|
|
Name
|
|
Registered Address
|
|
Registered Number with the Registry
of Trade and Companies
|
|
|
|
|
|
BNP PARIBAS
(as a Lender and the Agent)
|
|
16 boulevard des Italiens,
75009 Paris, France
|
|
662 042 449 (RCS Paris)
|
|
|
|
|
|
CREDIT AGRICOLE
CORPORATE &
INVESTMENT BANK
(formerly known as Calyon)
|
|
9 quai du Président Paul
Doumer, 92920 Paris La
Défense Cedex,
France
|
|
304 187 701 (RCS Nanterre)
|
|
|
|
|
|
HSBC FRANCE
|
|
103 avenue des Champs
Elysées, 75419 Paris, Cedex
08,
France
|
|
775 670 284 (RCS Paris)
|
|
|
|
|
|
SOCIETE GENERALE
|
|
29 boulevard Haussmann,
75009 Paris, France
|
|
552 120 222 (RCS Paris)
|
|
each a French société anonyme
|
|
|
|
|
11
Schedule 2
Loan Agreement
12
DATED 22 SEPTEMBER 2006
F3 TWO, LTD.
as Borrower
BNP PARIBAS
as Agent
BNP PARIBAS, CALYON, HSBC FRANCE and SOCIETE GENERALE
as Mandated Lead Arrangers and Lenders
LOAN
AGREEMENT
Hull No. D33
Equivalent Amount in United States Dollars of
EUR662,905,320
AS AMENDED AND RESTATED ON
2010
CONTENTS
|
|
|
|
|
|
|
|
|
Clause
|
|
Page
|
|
|
|
|
|
|
1.
|
|
Definitions and Construction
|
|
|
2
|
|
|
|
|
|
|
2.
|
|
Availability of the Loan
|
|
|
14
|
|
|
|
|
|
|
3.
|
|
Drawing
|
|
|
15
|
|
|
|
|
|
|
4.
|
|
Repayment of Loan and Payment of Interest
|
|
|
21
|
|
|
|
|
|
|
5.
|
|
Claims or Defences may not be opposed to the Lenders
|
|
|
23
|
|
|
|
|
|
|
6.
|
|
Coface Premium
|
|
|
23
|
|
|
|
|
|
|
7.
|
|
Fees
|
|
|
24
|
|
|
|
|
|
|
8.
|
|
Taxes, Increased Costs, Costs and Related Charges
|
|
|
25
|
|
|
|
|
|
|
9.
|
|
Representations and Warranties
|
|
|
27
|
|
|
|
|
|
|
10.
|
|
Undertakings
|
|
|
32
|
|
|
|
|
|
|
11.
|
|
Prepayment
|
|
|
46
|
|
|
|
|
|
|
12.
|
|
Interest on Late Payments
|
|
|
46
|
|
|
|
|
|
|
13.
|
|
Acceleration—Events of Default
|
|
|
47
|
|
|
|
|
|
|
14.
|
|
Mandatory Prepayment
|
|
|
52
|
|
|
|
|
|
|
15.
|
|
Currency of Payment
|
|
|
52
|
|
|
|
|
|
|
16.
|
|
Security
|
|
|
53
|
|
|
|
|
|
|
17.
|
|
Application of Sums Received
|
|
|
53
|
|
|
|
|
|
|
18.
|
|
Changes to the Lenders
|
|
|
53
|
|
|
|
|
|
|
19.
|
|
Changes to the Obligors
|
|
|
57
|
|
|
|
|
|
|
20.
|
|
Role of the Agent and the Mandated Lead Arrangers
|
|
|
57
|
|
|
|
|
|
|
21.
|
|
Conduct of Business by the Finance Parties
|
|
|
61
|
|
|
|
|
|
|
22.
|
|
Sharing among the Finance Parties
|
|
|
61
|
|
|
|
|
|
|
23.
|
|
Payment Mechanics
|
|
|
63
|
|
|
|
|
|
|
24.
|
|
Governing Law
|
|
|
64
|
|
|
|
|
|
|
25.
|
|
Enforcement
|
|
|
64
|
|
|
|
|
|
|
26.
|
|
Appendices
|
|
|
65
|
|
|
|
|
|
|
27.
|
|
Notices
|
|
|
65
|
|
|
|
|
|
|
28.
|
|
Miscellaneous
|
|
|
66
|
|
|
|
|
|
|
29.
|
|
Coming into Force
|
|
|
66
|
|
|
|
|
|
|
30.
|
|
Steering Committee
|
|
|
67
|
|
|
|
|
|
|
APPENDIX I
|
|
DOCUMENTS TO BE PRODUCED BY THE BUILDER TO BNP PARIBAS AS AGENT
|
|
|
71
|
|
|
|
|
|
|
|
|
|
|
APPENDIX II
|
|
THE ORIGINAL LENDERS AND THE MANDATED LEAD ARRANGERS
|
|
|
72
|
|
|
|
|
|
|
APPENDIX III
|
|
FORM OF TRANSFER CERTIFICATE
|
|
|
73
|
|
|
|
|
|
|
APPENDIX IV
|
|
FORM OF DRAWDOWN NOTICE
|
|
|
74
|
|
|
|
|
|
|
APPENDIX V
|
|
APOLLO-RELATED TRANSACTIONS
|
|
|
75
|
|
|
|
|
|
|
|
|
Schedule 1 Accumulated Book Depreciation
|
|
|
84
|
|
|
|
|
|
|
APPENDIX VI
|
|
CALCULATION OF MANDATORY COST
|
|
|
85
|
|
|
|
|
|
|
APPENDIX VII
|
|
SPECIMEN REPAYMENT SCHEDULE (for illustrative purposes only)
|
|
|
87
|
|
THIS LOAN AGREEMENT
(the
“Agreement”
) is entered into this 22 day of September 2006
(as amended and restated on 2010)
BETWEEN
:
|
(1)
|
F3 TWO, LTD.
, a company incorporated in and existing under the laws of Bermuda with registration number EC38768 and with its registered office at Milner House,
18 Parliament Street, Hamilton HM 12, Bermuda (the
“Borrower”
);
|
|
(2)
|
THE SEVERAL BANKS
, particulars of which are set out in Appendix II as lenders (the
“Original Lenders”
);
|
|
(3)
|
THE SEVERAL BANKS
, particulars of which are set out in Appendix II as mandated lead arrangers (the
“Mandated Lead Arrangers”
); and
|
|
(4)
|
BNP PARIBAS
as agent for the lenders (the
“Agent”
).
|
WHEREAS:
|
(A)
|
A shipbuilding contract was signed as of 7 September 2006 and amended by an agreement dated 16 December 2008, a letter of agreement dated 30 January 2009
and letters of election dated 27 August 2009 and 24 May 2010 (the
“Building Contract”
) between (among others) the Borrower and Aker Yards S.A. (now known as STX France S.A.) (the
“Builder”
) for the design,
construction and delivery of a two thousand one hundred (2,100) passenger cabin cruise vessel having hull no. D33, specification hull no. PB6847 [.07 rev A] dated 7 September 2006, to be ready for delivery on 17 June 2010 (as at the
date of the Fourth Supplemental Deed) (the
“Vessel”
).
|
|
(B)
|
The contract price of the Vessel is seven hundred and thirty five million euro (EUR735,000,000) (subject to adjustment in accordance with the terms of the Building
Contract) (the
“Contract Price”
), payable at the times and in the manner specified in the Building Contract. The terms of payment of the Contract Price are as follows:
|
|
|
(i)
|
[*] payable within three (3) Working Days (as defined in the Building Contract) after the Effective Date (as defined in the Building Contract);
|
|
|
(ii)
|
[*] payable on first steel cutting but not before [*];
|
|
|
(iii)
|
[*] payable on completion of keel laying but not before [*];
|
|
|
(iv)
|
[*] payable on the date the Vessel is launched into the water at the yard of the Builder but not before [*]; and
|
|
|
(v)
|
the remainder payable upon delivery and acceptance of the Vessel.
|
|
(C)
|
The Contract Price may be increased or decreased from time to time with respect to certain modifications to the Building Contract, the plans or the specification (the
“Change Orders”
).
|
|
(D)
|
The Lenders agree to make available to the Borrower a loan facility on the terms and conditions set out herein for the purpose of assisting the Borrower to finance part
of the Contract Price (including the amount of the Change Orders) and the related Coface Premium.
|
NOW THEREFORE
, it is agreed as follows:
|
1.
|
DEFINITIONS AND CONSTRUCTION
|
In this
Agreement (including the Recitals) and the Appendices (all of which form an integral part of this Agreement) the following expressions shall have the meanings set out opposite them below.
“Affiliate”
means, with respect to any person, any other person controlling, controlled by or under common control with,
such person and for purposes of this definition,
“control”
(including, with correlative meanings, the terms
“controlling”
,
“controlled by”
and
“under common control with”
), as
applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent. (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the
direction of the management and policies of that person, whether through the ownership of voting securities or by contract of otherwise.
“Amendment Document”
means, in respect of a Group Credit Facility other than the Loan, the supplemental deed to the facility agreement and, if applicable, the guarantee of the Guarantor
of even date with the Third Supplemental Deed.
“Amendment Fee Letter”
means the fee letter dated
1 April 2009 between the Agent, the Borrower and the Guarantor applicable to any request by the Borrower for an amendment to or waiver of a provision of a Security Document made prior to ninety (90) days before the Intended Delivery Date.
“Annex VI”
means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International
Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997).
“Apollo”
means
the Fund and any Fund Affiliate.
“Apollo-Related Transactions”
means the transactions described in Appendix
V.
“Apollo Transaction Documents”
means the Subscription Agreement, the Shareholders’ Agreement and the
Reimbursement Agreement.
“Assignment of Earnings”
means an assignment to be entered into between the
Borrower and the Finance Parties and to be in the agreed form.
“Assignment of Insurances”
means an
assignment to be entered into between the Borrower, the Manager, if applicable, and the Finance Parties and to be in the agreed form.
“Assignment of Management Agreement”
means an assignment to be entered into between the Borrower and the Finance Parties and to be in the agreed form.
“Assignment of Warranty Rights”
means an assignment to be entered into between the Borrower and the Finance Parties with
respect to the Borrower’s rights under the post-delivery warranty given by the Builder under the Building Contract.
“Availability Termination Date”
means the date falling [*] (being the period stipulated in article 9, clause 2.1(i)(b)
of the Building Contract) after [*].
2
“Building Contract”
means that certain contract entered into between the
Borrower and the Builder dated as of 7 September 2006, as from time to time amended, in respect of the design, construction and delivery of the Vessel.
“Builder”
means STX France S.A. (formerly known as Aker Yards S.A. and STX France Cruise S.A.), a company incorporated in France and having its principal office at Avenue
Bourdelle—B.P. 90180, 44613 Saint-Nazaire Cedex, France, Republic of France.
“Business Day”
means a
full day on which commercial banks are open for business and dealing in deposits in New York, Paris and London.
“Certified Copy”
means, in relation to any document delivered or issued by or on behalf of any company, a copy of such
document certified as a true, complete and up-to-date copy of the original by any of the directors or the secretary or assistant secretary or any attorney-in-fact for the time being of that company.
“Change Order Amount”
means the cost of the Change Orders.
“Change Orders”
means those certain change orders to the specifications of the Vessel as may be agreed to from time to
time by the Borrower and the Builder, the net cost of which is payable at delivery.
“Coface”
means
Compagnie Française d’Assurance pour le Commerce Extérieur
a French
société anonyme
with its registered office at 12 Cours Michelet, La Défense, 92800 Puteaux, France, registered with the
Registry of Commerce and Companies of Nanterre under number 552 069 791.
“Coface Insurance Policy”
means the insurance policy in respect of this Agreement to be issued by Coface for the benefit of the Lenders, in form and substance satisfactory to the Agent and the Lenders.
“Coface Premium”
means the amount payable by the Borrower to Coface through the Agent on the Delivery Date in respect of the Coface Insurance Policy which shall be [*] of the Total
Financed Contract Price.
“Commitment”
means:
|
|
(a)
|
in relation to an Original Lender, [*] of the Maximum Loan Amount and the amount of any other Commitment transferred to it under this Agreement; and
|
|
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
to the extent not increased, cancelled, reduced or transferred by it under this Agreement.
“Compulsory Acquisition”
means requisition for title or other compulsory acquisition of the Vessel including her
capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government
or governmental authority or agency.
“Contract Price”
means the total price payable by the Borrower to the
Builder for the Vessel in accordance with the Building Contract being, as at the date of the Building Contract, seven hundred and thirty five million euro (EUR735,000,000).
3
“Credit Card Processor Security Documents”
means:
|
|
(a)
|
any ship mortgage and, if applicable, deed of covenants collateral thereto to be granted over a vessel in the Group Fleet (other than the Hermes Vessels and the Vessel)
and the assignment(s) of the earnings and insurances of such vessel ranking junior in priority to any ship mortgage and, if applicable, deed of covenants collateral thereto, assignment and other applicable security document granted as security for
the repayment of one or more of the Group Credit Facilities; and
|
|
|
(b)
|
any guarantee by the applicable shipowner (fully subordinated to any guarantees supporting the Group Credit Facilities),
|
in each case in favour of one or more providers of credit card processing services to the Group.
“Delivery Date”
means the date and time stated in the Protocol of Delivery and Acceptance.
“Document of Compliance”
means a document issued to the Vessel’s operator as evidence of its compliance with the
requirements of the ISM Code.
“Dollar”
and
“USD”
mean the lawful currency of the United
States of America.
“Drawdown Date”
means the date on which the Loan is drawn down and applied in accordance
with Clause 2.
“Drawdown Notice”
means the drawdown notice and certificate duly executed by the Borrower
substantially in the form of Appendix IV.
“Earnings”
means, in respect of the Vessel, (whether earned or to
be earned) any and all freights, hire, fares and passage monies, proceeds of requisition (other than proceeds of Compulsory Acquisition), rebates and commissions, all earnings deriving from contracts of employment, demurrage, charterparties,
contracts of affreightment, pooling agreements and joint ventures, compensation, remuneration for salvage and towage services, damages howsoever arising and detention monies, damages for breach of any charterparty or other contract for the
employment of the Vessel, any amounts payable in consideration of the termination or variation of any charterparty or other such contract and any other earnings whatsoever due or to become due to the Borrower.
“Encumbrance”
means any mortgage, charge, pledge, lien, assignment, hypothecation, title retention, preferential right
or trust arrangement or any other security agreement or arrangement.
“Equivalent Amount”
means the Dollar
equivalent of the total of the euro amounts referred to in Clause 2.1 or such lesser amounts as are referred to in the Drawdown Notice, determined at the Exchange Rate.
“euro”
and
“EUR”
means the single currency of the Participating Member States.
“Euro Reference Banks”
means BNP Paribas, Deutsche Bank AG and KfW IPEX-Bank GmbH.
“Event of Default”
means any one of the events specified in Clause 13.2.
“Exchange Rate”
means the exchange rate determined by the Swap Agent and notified to the Agent as being the Reuters Page ECB37 rate at or about 2.30 p.m. Central European Time two
(2) Business Days before the Drawdown Date plus nought point nought five per cent. (0.05%).
4
“Facility Office”
means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
“Financed Contract Price”
means the lesser of five hundred and eighty eight million euro (EUR588,000,000)
and eighty per cent. (80%) of the Contract Price less the Change Order Amount.
“Financed Change Order
Amount”
means the lesser of fifty eight million eight hundred thousand euro (EUR58,800,000) and eighty per cent. (80%) of the Change Order Amount.
“Finance Party”
means the Agent, a Mandated Lead Arranger or a Lender and its successors in title, permitted assignees and permitted transferees.
“Financial Indebtedness”
means any obligation for the payment or repayment of money, whether as principal or as surety
and whether present or future, actual or contingent.
“First Supplemental Deed”
means the first supplemental
deed dated 21 December 2007 to this Agreement.
“
Fourth Supplemental Deed
” means the fourth supplemental
deed dated 2010 to this Agreement.
“French Authorities”
means the
Direction Générale du
Trésor et de la Politique Economique
of the French Ministry of Economy and Finance, any successors thereto, or any other authority in or of the French Republic having jurisdiction over and responsibility for the provision, management or
regulation of the terms, conditions and issuance of export credits in or for the French Republic including (inter alia) such entities to whom authority in respect of extension or administration of export financing matters have been delegated, such
as Coface.
“Fund”
means Apollo Management VI, LP a Delaware limited partnership with its
principal place of business at 9 West 57
th
Street,
43
rd
Floor, New York, NY 10019, United States of America
and other affiliated co-investment partnerships.
“Fund Affiliate”
means the Investors and (a) each
other Affiliate (as defined in Appendix V) of the Fund that is neither a “portfolio company” (which means a company actively engaged in providing goods to unaffiliated customers), whether or not controlled, nor a company controlled by a
portfolio company and (b) any individual who is a partner or employee of Apollo Management, LP, Apollo Management IV, LP or Apollo Management V, LP.
“GAAP”
means generally accepted accounting principles in the United States of America consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies)
including, without limitation, those set forth in the opinion and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board.
“Group”
means the Guarantor and its Subsidiaries.
5
“Group Fleet”
means the vessels owned by the companies in the Group and
being at the Third Restatement Date:
“NORWEGIAN SPIRIT” owned by Norwegian Spirit, Ltd.
“NORWEGIAN STAR” owned by Norwegian Star Limited
“NORWEGIAN PEARL” owned by Norwegian Pearl, Ltd.
“NORWEGIAN
GEM” owned by Norwegian Gem, Ltd.
“NORWEGIAN SUN” owned by Norwegian Sun Limited
“NORWEGIAN DAWN” owned by Norwegian Dawn Limited
“NORWEGIAN JEWEL” owned by Norwegian Jewel Limited
“NORWEGIAN
JADE” (ex “PRIDE OF HAWAII”) owned by Pride of Hawaii, LLC
“PRIDE OF AMERICA” owned by Pride of
America Ship Holding, LLC
“Group Credit Facilities”
means at the Third Restatement Date the EUR624,000,000
facility made to the Guarantor pursuant to a facility agreement dated 7 October 2005 (as amended and/or restated from time to time), the EUR308,130,000 facility made to Pride of Hawaii, LLC pursuant to a facility agreement dated 20 April
2004 (as amended and/or restated from time to time), the USD334,050,000 facility made to Norwegian Jewel Limited pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time to time), the EUR258,000,000 facility
made to Pride of America Ship Holding, LLC pursuant to a facility agreement dated 4 April 2003 (as amended and/or restated from time to time), the EUR40,000,000 facility made to Pride of America Ship Holding, LLC pursuant to a facility
agreement dated 4 April 2003 (as amended and/or restated from time to time) and the Loan.
“Group-Wide
Lenders”
means the lenders of the Group Credit Facilities.
“Guarantee”
means the guarantee of the
obligations of the Borrower under this Agreement to be signed by the Guarantor and to be in the agreed form.
“Guaranteed Loan Lenders”
means the lenders of the EUR308,130,000 facility made to Pride of Hawaii, LLC pursuant to a
facility agreement dated 20 April 2004 (as amended and/or restated from time to time), the USD334,050,000 facility made to Norwegian Jewel Limited pursuant to a facility agreement dated 20 April 2004 (as amended and/or restated from time
to time), the EUR258,000,000 facility made to Pride of America Ship Holding, LLC pursuant to a facility agreement dated 4 April 2003 (as amended and/or restated from time to time) and the EUR40,000,000 facility made to Pride of America Ship
Holding, LLC pursuant to a facility agreement dated 4 April 2003 (as amended and/or restated from time to time).
“Guarantor”
means NCL Corporation Ltd., a company incorporated in and existing under the laws of Bermuda with
registration number EC34678 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda.
“Hermes Vessel Owner Second Guarantees”
means the three (3) joint and several guarantees one (1) to be
executed by each of the owners of the Hermes Vessels in favour of the Restructuring Trustee as trustee for the Guaranteed Loan Lenders.
“Hermes Vessel Owner Third Guarantees”
means the three (3) joint and several guarantees one (1) to be executed by each of the owners of the Hermes Vessels in favour of the
Restructuring Trustee as trustee for the Non-Guaranteed Loan Lenders.
“Hermes Vessels”
means “NORWEGIAN
JEWEL” owned by Norwegian Jewel Limited, “NORWEGIAN JADE” owned by Pride of Hawaii, LLC and “PRIDE OF AMERICA” owned by Pride of America Ship Holding, LLC.
“IAPPC”
means a valid international air pollution prevention certificate for the Vessel issued under Annex VI.
6
“Insurances”
means all policies and contracts of insurance and entries of
the Vessel in a protection and indemnity or war risks association which are effected in respect of the Vessel, her freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also
include all compensation payable by virtue of Compulsory Acquisition.
“Intended Delivery Date”
means
17 June 2010 (the date on which the Vessel will be ready for delivery pursuant to the Building Contract as at the date of the Fourth Supplemental Deed) or any other date notified by the Borrower to the Agent in accordance with Clause 27 as
being the date on which the Vessel will be ready for delivery pursuant to the Building Contract.
“Interest
Period”
means any of the periods of six (6) months the first of which shall start on the Drawdown Date or, if the Loan is already made, on the last day of the preceding six (6) month period and end on the date which numerically
corresponds to the Drawdown Date, or the last day of the preceding six (6) month period, in the relevant calendar month except that, if there is no numerically corresponding date in that calendar month, the six (6) month period shall end
on the last Business Day in that month.
“Investor I”
means NCL Investment Ltd. a company organised and
existing under the laws of Bermuda with its registered office at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda.
“Investor II”
means NCL Investment II Ltd. a company organised and existing under the laws of the Cayman Islands with
its registered office at c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9002, Cayman Islands, British West Indies.
“Investors”
means Investor I and Investor II.
“ISM
Code”
means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation.
“ISPS Code”
means the International Ship and Port Facility Security Code adopted by the International Maritime Organisation.
“Lender”
means:
|
|
(a)
|
any Original Lender; and
|
|
|
(b)
|
any bank or financial institution which has become a Party in accordance with Clause 18,
|
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
“Letter of Credit Facilities”
means letter of credit facilities entered into from time to time in the amount of in
aggregate up to [*] to be obtained by the Guarantor which facilities will be used to provide credit support in respect of the Guarantor’s credit card processing arrangements.
“Letter of Credit Facilities Security Documents”
means:
|
|
(a)
|
any ship mortgage and, if applicable, deed of covenants collateral thereto to be granted over a vessel in the Group Fleet (other than the Hermes Vessels and the Vessel)
and the assignment(s) of the earnings and insurances of such vessel ranking junior in priority to any ship mortgage and, if applicable, deed of covenants collateral thereto, assignment and other applicable security document granted as security for
the repayment of one or more of the Group Credit Facilities; and
|
7
|
|
(b)
|
any guarantee by the applicable shipowner (fully subordinated to any guarantees supporting the Group Credit Facilities),
|
in each case in favour of the provider of a Letter of Credit Facility.
“LIBOR”
means with respect to any Interest Period the rate of interest (expressed as an annual rate) determined by the
Agent to be:
|
|
(a)
|
the offered rate for deposits in Dollars for a period equivalent to such Interest Period which appears on the Reuters BBA Page LIBOR 01 at or about 11.00 a.m. London
time on the Quotation Date; or
|
|
|
(b)
|
if no rate is provided for the respective Interest Period on the Reuters BBA Page LIBOR 01, the interpolated rate per annum for deposits in Dollars in an amount
approximately equal to the Loan as calculated by the Agent, such interpolated rate to be based on the Reuters BBA Page LIBOR 01 provided that LIBOR for periods of less than one (1) week will be ascertained under sub-section (c) below;
|
or (if Reuters BBA Page LIBOR 01 is discontinued or if the Agent is unable to make the said determination due to
technical breakdown in the relevant system or the Interest Period is less than one (1) week)
|
|
(c)
|
the arithmetic mean (rounded upwards, if necessary, to five (5) decimal places) of the rates per annum notified to the Agent by each of the Reference Banks as the
rate at which deposits in Dollars in an amount approximately equal to the Loan are offered to such Reference Bank by leading banks in the London Interbank market at such Reference Bank’s request at or about 11.00 a.m. London time on the
Quotation Date for a period equal to the Interest Period and for delivery on the first Business Day thereof.
|
“Loan”
means the Equivalent Amount of the aggregate of the amount of (a) the Total Financed Contract Price paid to
the Builder pursuant to Clause 2.1.1 and (b) the amount in euro of the Coface Premium reimbursed to the Agent pursuant to Clause 2.1.2, as such amount may be increased or decreased pursuant to the terms of this Agreement or (as the context may
require) the amount thereof for the time being drawn down and outstanding hereunder.
“Majority Group-Wide
Lenders”
means Group-Wide Lenders the aggregate of whose contributions and commitments to the Group Credit Facilities exceed fifty per cent. (50%) of the aggregate total of the contributions and commitments of all the Group-Wide
Lenders.
“Mandatory Cost”
means the percentage rate per annum calculated by the Agent in accordance with
Appendix VI.
“Management Agreement”
means the management agreement entered or to be entered into between the
Borrower and the Manager with respect to the Vessel.
“Manager”
means NCL (Bahamas) Ltd., a company
incorporated in and existing under the laws of Bermuda with registration number EC34680 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda.
8
“Margin”
means at all times during the twelve (12) month period
commencing on the Drawdown Date [*] at all times thereafter.
“Maritime Registry”
means the Bahamas maritime
registry or such other registry as the Lenders may in their discretion agree.
“Maximum Loan Amount”
means
the Equivalent Amount of the amount of six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320).
“Mortgage”
means the first priority mortgage and deed of covenants collateral thereto over the Vessel in favour of the Finance Parties, to be granted as provided for in Clause 16 and
to be in the agreed form.
“NCL America Holdings”
means NCL America Holdings, LLC of Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America.
“NCL International”
means
NCL International, Ltd. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda.
“Non-Guaranteed Loan
Lenders”
means the lenders of the EUR624,000,000 facility made to the Guarantor pursuant to a facility agreement dated 7 October 2005 (as amended and/or restated from time to time).
“Obligors”
means the Borrower, the Guarantor and the Manager.
“Overnight LIBOR”
means, on any date, the London Interbank offered rate, being the day to day rate at which Dollars are
offered to prime banks in the London Interbank market and published by the British Bankers’ Association at or about 11.00 a.m. London time on Reuters BBA Page LIBOR 01.
“Participating Member State”
means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union
relating to Economic and Monetary Union.
“Party”
means a party to this Agreement.
“Permitted Indebtedness”
means:
|
|
(i)
|
any monies borrowed or raised other than from any direct or indirect shareholder of the Guarantor prior to the date on which the last of the Third Supplemental Deed and
the Amendment Documents have been signed by all the parties thereto and notified by the Guarantor to the Agent prior to such date;
|
|
|
(ii)
|
the Letter of Credit Facilities; and
|
|
|
(iii)
|
Permitted Refinancing Indebtedness.
|
“Permitted Liens”
means:
|
|
(a)
|
any Encumbrance created by or pursuant to the Security Documents; and
|
9
|
|
(b)
|
liens on the Vessel up to an aggregate amount at any time not exceeding ten million Dollars (USD10,000,000) for current crew’s wages and salvage and liens incurred
in the ordinary course of trading the Vessel; and in the case of the Manager in respect of paragraph (d) only and in the case of the Guarantor:
|
|
|
(c)
|
any deposits or pledges to secure the performance of bids, tenders, bonds or contracts;
|
|
|
(d)
|
(x) any other Encumbrance notified by any of the Obligors to the Agent prior to the date on which the Third Supplemental Deed and the Amendment Documents have been
signed by all the parties thereto (y) any Encumbrance created by or pursuant to (i) the Letter of Credit Facilities Security Documents (ii) the Credit Card Processor Security Documents (iii) the Hermes Vessel Owner Second
Guarantees (iv) the Second Mortgages (v) the Second Assignments (vi) the Hermes Vessel Owner Third Guarantees (vii) the Third Mortgages and (viii) the Third Assignments and (z) any other Encumbrance created over a
vessel in the Group Fleet (other than a Hermes Vessel or the Vessel) or its related assets in favour of any party approved by the Agent (acting on the instructions of the Lenders).
|
|
|
(e)
|
subject to clause 10.6 of the Guarantee, any Encumbrances in respect of existing Financial Indebtedness of a person which becomes a Subsidiary of the Guarantor or is
merged with or into the Guarantor or any of its Subsidiaries;
|
|
|
(f)
|
liens on assets leased, acquired or upgraded after the date hereof or assets newly constructed or converted after the date hereof provided that (i) such liens
secure Financial Indebtedness otherwise permitted under this Agreement (ii) such liens are incurred within one (1) year following such lease, acquisition, upgrade, construction or conversion and (iii) the Financial Indebtedness
secured by such liens does not exceed the cost of such upgrade or the cost of such assets acquired or leased;
|
|
|
(g)
|
statutory and other similar liens arising in the ordinary course of business unrelated to Financial Indebtedness and securing obligations not yet delinquent or which
are being contested in good faith by appropriate proceedings and for which adequate reserves have been established;
|
|
|
(h)
|
subject to Clause 13.2.9, liens arising out of the existence of judgments or awards in respect of the Guarantor or any of its Subsidiaries; and
|
|
|
(i)
|
any deposits, liens or other Encumbrances placed or incurred in connection with any bond or other surety from time to time provided to the US Federal Maritime
Commission in order to comply with laws, regulations and rules applicable to the operators of passenger vessels operating to or from ports in the United States of America,
|
provided that the aggregate amount of all cash and the fair market value of all other property subject to such liens as are described in
paragraphs (f) to (h) above does not exceed twenty five million Dollars (USD25,000,000) and provided further that any such lien as is described in paragraphs (f) to (h) above does not imperil the security created by any of the
Security Documents and/or affect the ability of any Obligor duly to perform any of its obligations under any Security Document to which it is or may be a party at any time, in each case in the opinion of the Agent.
“Permitted Refinancing Indebtedness”
means any monies borrowed or raised at arm’s length on usual terms and other
than from any direct or indirect shareholder of the Guarantor which are used to refinance the whole or part of any Permitted Indebtedness including any Permitted Refinancing Indebtedness. Any such monies borrowed or raised in excess of the amount
required to refinance any Permitted Indebtedness including any Permitted Refinancing Indebtedness shall constitute Special Liquidity Sources and be applied in accordance with clause 12 of the Guarantee.
10
“Process Agent”
means, in respect of any Security Documents executed prior
to the date of the second supplemental deed to this Agreement dated 24 April 2008, Clifford Chance Secretaries Limited whose registered office is presently at 10 Upper Bank Street, London E14 5JJ and, thereafter, EC3 Services Limited whose
registered office is presently at 51 Eastcheap, London EC3M 1JP or any other person in England nominated by the Borrower or any other Obligor and approved by the Agent as agent to accept service of legal proceedings on their behalf under any of
the Security Documents.
“Protocol of Delivery and Acceptance”
means the protocol of delivery and acceptance
of the Vessel to be signed by the Borrower and the Builder in accordance with article 7, clause 1.3(i) of the Building Contract.
“Quotation Date”
means, the day falling two (2) Business Days before the first day of any Interest Period.
“Reference Banks”
means Banco Santander, S.A., BNP Paribas and Deutsche Bank AG.
“Reimbursement Agreement”
means the reimbursement and distribution agreement dated 17 August 2007, by and among Investor I, Star and the Guarantor.
“Reuters BBA Page LIBOR 01”
means the display currently designated as Reuters BBA Page LIBOR 01, which includes London
Interbank Offered Rates of four (4) major banks, which are members of the International Swaps and Derivatives Association, Inc. or such other service as may be nominated by the British Bankers’ Association as the information vendor for
displaying the London Interbank Offered Rates of major banks in the London Interbank market.
“Reuters Page
ECB37”
means:
|
|
(a)
|
the display currently designated as Reuters Page ECB37 which includes the official interbank exchange rate for euro in Dollars as determined by the European Central
Bank, expressed in Dollars; or
|
|
|
(b)
|
if no rate is provided on the Reuters Page ECB37 but is published on another screen page, then the exchange rate shall be the official interbank exchange rate for euro
in Dollars as published on such other page (the
“Successor Page”
);
|
or (if Reuters Page ECB37
and the Successor Page are discontinued or if the Swap Agent is unable to make the said determination due to technical breakdown in the relevant system)
|
|
(c)
|
the arithmetic mean (rounded upwards, if necessary, to five (5) decimal places) of the rates notified to the Swap Agent by each of the Euro Reference Banks as the
euro/Dollar spot offered exchange rate quotations as of 2.45 p.m. Central European Time on the relevant Business Day.
|
“Restructuring Trustee”
means [*] as trustee for (directly or indirectly) (among others) the Guaranteed Loan Lenders and the Non-Guaranteed Loan Lenders.
“Safety Management Certificate”
means a document issued to the Vessel as evidence that the Vessel’s operator and
its shipboard management operate in accordance with an approved Safety Management System.
“Safety Management
System”
means a structured and documented system enabling the personnel of the Vessel’s operator to implement effectively the safety and environmental protection policy of that Vessel operator.
11
“Second Assignments”
means the three (3) valid and effective second
legal assignments of the earnings and insurances of the Hermes Vessels (together with the notices thereof) one (1) to be executed by each of the owners of the Hermes Vessels in respect of its Hermes Vessel and the one (1) valid and
effective second priority subordination and assignment to be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE” in each case in favour of the Restructuring Trustee as trustee for the Guaranteed Loan
Lenders.
“Second Mortgages”
means the two (2) second priority statutory Bahamian ship mortgages and
deeds of covenants collateral thereto and the one (1) second preferred US ship mortgage one (1) to be granted by respectively each of the owners of the Hermes Vessels over its Hermes Vessel in favour of the Restructuring Trustee as trustee
for the Guaranteed Loan Lenders.
“Second Restatement Date”
has the meaning set out in the Third Supplemental
Deed.
“Security Documents”
means this Agreement which includes any supplemental agreement or deed hereto,
the Guarantee, the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings, the Assignment of Management Agreement and all such other documents as may be executed at any time in favour of the Finance
Parties or any of them as security for the obligations of the Borrower and the other Obligors whether executed pursuant to the express provisions of this Agreement or otherwise howsoever.
“Security Period”
means the period beginning on the Drawdown Date and ending on the date on which the amounts
outstanding under this Agreement and under each of the other Security Documents are finally paid or repaid in full.
“Shareholders’ Agreement”
means the shareholders’ agreement dated 17 August 2007 made or to be made
between Star, the Investors (directly in the case of Investor I and by way of joinder in the case of Investor II) and the Guarantor.
“Star”
means Star Cruises Limited a company organised and existing under the laws of Bermuda with its registered office at Canon’s Court, 22 Victoria Street, Hamilton HM 12,
Bermuda.
“Steering Committee”
means a committee established by, and formed from, the Group-Wide Lenders with
the purpose of co-ordinating the relationship between the Guarantor and the Group-Wide Lenders and monitoring the performance of the Group Credit Facilities. The initial members of the Steering Committee shall be [*].
“Subscription Agreement”
means the subscription agreement dated 17 August 2007 made or to be made between Star, the
Investors (directly in the case of Investor I and by way of assignment in the case of Investor II) and the Guarantor.
“Subsidiary”
means, with respect to the Guarantor, any company or corporation of which more than fifty per cent.
(50%) of the outstanding share capital having ordinary voting power to elect a majority of the board of directors of such company or corporation (irrespective of whether at the time share capital of any other class or classes of such company or
corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by the Guarantor, by the Guarantor and one or more other Subsidiaries of the Guarantor, or by one or more other
Subsidiaries of the Guarantor.
“Substitute Basis”
means an alternative basis agreed for maintaining the Loan
pursuant to Clause 4.2.
12
“Swap Agent”
means BNP Paribas.
“Taxes”
means all present and future income and other taxes, levies, imposts, deductions, compulsory liens and
withholdings whatsoever together with interest thereon and penalties with respect thereto, if any, and any payments made on or in respect thereof and
“Taxation”
shall be construed accordingly.
“Termination Date”
means the date falling [*] after the Delivery Date.
“Third Assignments”
means the three (3) valid and effective third legal assignments of the earnings and insurances
of the Hermes Vessels (together with the notices thereof) one (1) to be executed by each of the owners of the Hermes Vessels in respect of its Hermes Vessel and the one (1) valid and effective third priority subordination and assignment to
be executed by the Manager (as bareboat charterer) in respect of m.v. “NORWEGIAN JADE” in each case in favour of the Restructuring Trustee as trustee for the Non-Guaranteed Loan Lenders.
“Third Mortgages”
means the two (2) third priority statutory Bahamian ship mortgages and deeds of covenants
collateral thereto and the one (1) third preferred US ship mortgage one (1) to be granted by respectively each of the owners of the Hermes Vessels over its Hermes Vessel in favour of the Restructuring Trustee as trustee for the
Non-Guaranteed Loan Lenders.
“Third Supplemental Deed”
means the third supplemental deed dated 2 April
2009 to this Agreement.
“Total Commitments”
means the aggregate of the Commitments, being the Equivalent
Amount of six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320).
“Total Financed Contract Price”
means the aggregate of:
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(a)
|
the Financed Contract Price; and
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(b)
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the Financed Change Order Amount.
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“Total Loss”
means the actual or constructive or compromised or agreed or arranged total loss or the Compulsory Acquisition of the Vessel, including any such total loss as may arise
during a requisition for hire.
“Total Loss Date”
means:
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(a)
|
in the case of an actual total loss of the Vessel, the actual date on which the Vessel was lost or, if such date is not known, the date on which the Vessel was last
reported; or
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|
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(b)
|
in the case of a constructive total loss of the Vessel, or in the case of a compromised or arranged total loss of the Vessel, the date of the event giving rise to the
claim for such constructive total loss or to the claim for a compromised or arranged total loss; or
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|
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(c)
|
in the case of a Compulsory Acquisition on the date of the Compulsory Acquisition.
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“Transaction Documents”
means the Security Documents, the Building Contract, the Drawdown Notice, the Management
Agreement and any other material document now or hereafter issued in connection with the documents or the transaction referred to in this Agreement.
13
“Transfer Certificate”
means a certificate substantially in the form set
out in Appendix III or any other form agreed between the Agent and the Borrower.
“Transfer Date”
means,
in relation to a transfer, the later of:
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(a)
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the proposed Transfer Date specified in the Transfer Certificate; and
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(b)
|
the date on which the Agent executes the Transfer Certificate.
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“Vessel”
means the passenger cruise vessel referred to in Recital (A) of this Agreement and more specially described in the Building Contract, and, to the extent the context permits,
includes all manuals, logs and technical records relating to the said vessel.
References
in this Agreement to a document “in the agreed form” are to the form of the relevant document which is attached to the security letter of the same date as this Agreement or to such other form as the parties hereto may from time to time
agree, subject to modification in accordance with the provisions of the security letter.
Other than the Builder in respect of
Clauses 3.3 and 10.23 and the Swap Agent in respect of Clauses 3.2, 8.5 and 10.23, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
A provision of law including but without limitation a regulation is a reference to that provision or regulation as amended or
re-enacted from time to time and a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation.
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2.
|
AVAILABILITY OF THE LOAN
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Each of the
Lenders shall (in proportion to its share of the Total Commitments) make available to the Borrower a loan in a maximum amount of the Equivalent Amount of six hundred and two million six hundred and forty one thousand two hundred euro
(EUR602,641,200) intended to:
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2.1.1
|
be paid to the Builder in euro up to a maximum amount of five hundred and eighty eight million euro (EUR588,000,000) corresponding to eighty per cent. (80%) of the
Contract Price of the Vessel prior to any Change Order; and
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2.1.2
|
reimburse the Agent in Dollars up to an amount of the Equivalent Amount of fourteen million six hundred and forty one thousand two hundred euro (EUR14,641,200)
corresponding to one hundred per cent. (100%) of the related Coface Premium payable to Coface.
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14
In the event that the Contract Price for the Vessel prior to any Change Order increases
pursuant to the terms of the Building Contract, the Lenders agree, if the Borrower so requests in the Drawdown Notice, to increase the maximum amount of the Loan by:
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2.1.3
|
up to an amount of the Equivalent Amount of fifty eight million eight hundred thousand euro (EUR58,800,000) (being ten per cent. (10%) of the Financed Contract
Price) to pay to the Builder in euro up to eighty per cent. (80%) of the Change Order Amount; and
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2.1.4
|
up to an amount of [*] to reimburse the Agent [*] of the related Coface Premium payable to Coface.
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The Loan may
only be used to pay for goods and services of French origin. However, within the limits and under the conditions fixed by the French Authorities, this may be extended to cover goods and services incorporated in deliveries made by the Builder and
originating from countries other than the Borrower’s country and France, which have been sub-contracted by the Builder and therefore remain under the Builder’s responsibility.
The
Borrower may only draw under the Loan when the following conditions have been fulfilled to the satisfaction of the Lenders and provided no Event of Default shall have occurred and is continuing or be likely to occur:
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3.1.1
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No later than the date of this Agreement:
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(a)
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Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Borrower supporting the opinion,
including but without limitation the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower containing specimen signatures of the persons authorised to sign the
documents on behalf of the Borrower, to the effect that:
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|
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(i)
|
the Borrower has been duly organized and is validly existing as a company under the laws of Bermuda;
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(ii)
|
this Agreement falls within the scope of the Borrower’s corporate purpose as defined by its Memorandum of Association and Bye-laws;
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(iii)
|
the Borrower’s representatives were at the date of this Agreement fully empowered to sign this Agreement;
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(iv)
|
either all administrative requirements applicable to the Borrower (whether in Bermuda or elsewhere) concerning the transfer of funds abroad and acquisitions of euro to
meet its obligations hereunder have been complied with, or that there are no such requirements; and
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(v)
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this Agreement is the legal, valid and binding obligations of the Borrower enforceable in accordance with their terms (containing such exceptions as are standard for
opinions of this type).
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(b)
|
Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under this Agreement are legally
valid and binding obligations enforceable by the relevant Finance Parties in the English courts.
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15
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(c)
|
Receipt by the Agent of a Certified Copy of the executed Building Contract.
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(d)
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Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Borrower as agent for service of process in England in respect
of this Agreement.
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3.1.2
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No later than ten (10) Business Days after the date of this Agreement
:
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(a)
|
Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Guarantor supporting the
opinion, including but without limitation the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Guarantor containing specimen signatures of the persons authorised to sign
the documents on behalf of the Guarantor, to the effect that:
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|
|
(i)
|
the Guarantor has been duly organized and is validly existing as a company under the laws of Bermuda;
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|
(ii)
|
the Guarantee falls within the scope of the Guarantor’s corporate purpose as defined by its Memorandum of Association and Bye-laws;
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(iii)
|
the Guarantor’s representative was at the date of the Guarantee fully empowered to sign the Guarantee;
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|
(iv)
|
either all administrative requirements applicable to the Guarantor (whether in Bermuda or elsewhere) concerning the transfer of funds abroad and acquisitions of euro to
meet its obligations under the Guarantee have been complied with, or that there are no such requirements; and
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(v)
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the Guarantee is the legal, valid and binding obligations of the Guarantor enforceable in accordance with their terms (containing such exceptions as are standard for
opinions of this type).
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(b)
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Receipt by the Agent of the executed Guarantee and a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of
the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the financial quarter ending
30 June 2006.
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(c)
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Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Guarantor under the Guarantee are legally
valid and binding obligations enforceable by the relevant Finance Parties in the English courts.
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(d)
|
Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Guarantor as agent for service of process in England in respect
of the Guarantee.
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16
|
|
3.1.3
|
No later than three (3) months before the Intended Delivery Date
, receipt by the Agent of notification from the Borrower:
|
|
|
(a)
|
of its preferred Maritime Registry; and
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(b)
|
that each of the Apollo-Related Transactions has been completed or that the parties to any Apollo-Related Transaction that has not been completed by the date referred
to above have agreed not to implement that Apollo-Related Transaction.
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3.1.4
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On the date falling ninety (90) days before the Intended Delivery Date and on each subsequent date prior to the Drawdown Date on which a statement in the form
of schedule 1 to the Guarantee is to be received by the Agent pursuant to clause 9.2.5 of the Guarantee
, receipt by the Agent of a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of
the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the last financial quarter in respect of
which the Guarantor is obliged to provide such a statement pursuant to clause 9.2.5 of the Guarantee.
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|
|
3.1.5
|
No later than the date falling ninety (90) days before the Intended Delivery Date
, receipt by the Agent of the amendment fee referred to in Clause 7.1.4.
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|
|
3.1.6
|
No later than sixty (60) days before the Intended Delivery Date
, receipt by the Agent of notification from the Borrower of the Intended Delivery Date.
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|
|
3.1.7
|
No later than ten (10) Business Days before the Intended Delivery Date
, receipt by the Agent of insurance documents in form and substance satisfactory to
the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date.
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3.1.8
|
No later than five (5) Business Days before the Intended Delivery Date
, receipt by the Agent of:
|
|
|
(a)
|
the Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Loan to be drawn down;
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|
|
(b)
|
a Certified Copy of each of the Change Orders and of the power of attorney pursuant to which the authorised signatory of the Borrower signed the Drawdown Notice and a
specimen of his signature; and
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|
|
(c)
|
a copy of the notice of delivery given by the Builder to the Borrower pursuant to and in accordance with article 7, clause 1.1 of the Building Contract.
|
|
|
3.1.9
|
No later than the Delivery Date
:
|
|
|
(a)
|
Receipt by the Agent of a legal opinion of counsel to the Lenders as to Bermudan law together with the corporate documentation of the Borrower and the Manager
supporting such opinions, including but without limitation, in the case of the Manager, the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower and the Manager
containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower and the Manager, confirming that:
|
17
|
|
(i)
|
the Lenders may continue to rely on the Bermudan legal opinion given pursuant to the Fourth Supplemental Deed;
|
|
|
(ii)
|
the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement fall within the
scope of the Borrower’s corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it;
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|
|
(iii)
|
the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment of the Management Agreement fall within the scope of the Manager’s
corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it; and
|
|
|
(iv)
|
the Borrower’s representatives are fully empowered to sign the Protocol of Delivery and Acceptance, the Mortgage, the Assignment of Warranty Rights, the Assignment
of Insurances, the Assignment of Earnings and the Assignment of Management Agreement and the Manager’s representatives are fully empowered to sign the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment
of the Management Agreement.
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|
|
(b)
|
Receipt by the Agent of evidence of payment to the Builder of:
|
|
|
(i)
|
the four (4) pre-delivery instalments of the Contract Price; and
|
|
|
(ii)
|
any other part of the Contract Price as at the Delivery Date not being financed hereunder.
|
|
|
(i)
|
the Vessel is at least provisionally registered in the name of the Borrower in the Maritime Registry;
|
|
|
(ii)
|
title to the Vessel is held by the Borrower free of all Encumbrances other than any maritime lien in respect of crew’s wages and trade debts arising out of
equipment, consumable and other stores placed on board the Vessel prior to or concurrently with delivery, none of which is overdue;
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|
|
(iii)
|
the Mortgage has been duly registered in the Maritime Registry and constitutes a first priority security interest over the Vessel and that all taxes and fees payable to
the Maritime Registry in respect of the Vessel have been paid in full.
|
|
|
(d)
|
Receipt by the Agent of a Certified Copy of a classification certificate (or interim classification certificate) showing the Vessel to be classed in accordance with
Clause 9.4.3.
|
|
|
(e)
|
Receipt by the Agent of duly executed originals of the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the
Assignment of Management Agreement together with relevant notices of assignment and the acknowledgement of the notice of assignment of the Management Agreement.
|
18
|
|
(f)
|
Receipt by the Agent of all amounts which are due and payable hereunder or under the Amendment Fee Letter by the Borrower on or prior to the Delivery Date.
|
|
|
(g)
|
Receipt by the Agent of a legal opinion of counsel to the Lenders as to the law of the Maritime Registry confirming:
|
|
|
(i)
|
the valid registration of the Vessel in the Maritime Registry; and
|
|
|
(ii)
|
the Mortgage over the Vessel has been validly registered in the Maritime Registry.
|
|
|
(h)
|
Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under the deed of covenants
constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement are legally valid and binding obligations enforceable by the
relevant Finance Parties in the English courts.
|
|
|
(i)
|
Receipt by the Agent of a certificate from the Borrower, signed by an authorised representative of the Borrower, attesting that the representations and warranties
contained in Clause 9 are true and correct as of the Delivery Date in consideration of the facts and circumstances existing as of the Delivery Date.
|
|
|
(j)
|
Receipt by the Agent of the documents mentioned in Appendix I.
|
|
|
(k)
|
Receipt by the Agent of a Certified Copy of the executed Management Agreement.
|
|
|
(l)
|
Receipt by the Agent of a Certified Copy of the carrier initiative agreement executed pursuant to Clause 10.16 or evidence of any voluntary arrangements made under the
Customs-Trade Partnership Against Terrorism of the United States of America pursuant to Clause 10.16, any current certificate of financial responsibility in respect of the Vessel issued under OPA, a valid Safety Management Certificate (or
interim Safety Management Certificate) issued to the Vessel in respect of its management by the Manager pursuant to the ISM Code, a valid Document of Compliance (or interim Document of Compliance) issued to the Manager in respect of ships of the
same type as the Vessel pursuant to the ISM Code, a valid International Ship Security Certificate issued to the Vessel in accordance with the ISPS Code and a valid IAPPC issued to the Vessel in accordance with Annex VI.
|
|
|
(m)
|
Receipt by the Agent of a Certified Copy of the power of attorney pursuant to which the authorised signatory(ies) of the Borrower signed the documents referred to in
this Clause 3.1.6 and to which the Borrower is a party and a specimen of his or their signature(s).
|
|
|
(n)
|
Receipt by the Agent of a confirmation from the Process Agent that it will act for each of the relevant Obligors as agent for service of process in England in respect
of the deed of covenants constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement.
|
19
|
|
(o)
|
The Coface Insurance Policy documentation relating to the transactions contemplated by this Agreement has been received by the Agent and remains in full force and
effect, the Agent having notified the Borrower of the issue of the Coface Insurance Policy in form and substance satisfactory to the Lenders as soon as practicable after its issue.
|
|
3.2
|
Irrevocable funding instructions
|
The Borrower hereby instructs the Agent to procure that the Swap Agent in accordance with this Clause 3.2:
|
|
3.2.1
|
is notified no later than 4.00 p.m. Central European Time three (3) Business Days before the Drawdown Date of the sum of the euro amounts referred to in paragraph
(a) and, if applicable, paragraph (b) of the Drawdown Notice; and
|
|
|
3.2.2
|
promptly and in any event no later than 3.00 p.m. Central European Time two (2) Business Days before the Drawdown Date, notifies the Agent of the Equivalent Amount
of the euro amount so notified to it in accordance with Clause 3.2.1.
|
On being so notified by the Swap Agent,
the Agent shall promptly and in any event no later than 3.30 p.m. Central European Time two (2) Business Days before the Drawdown Date notify each of the Lenders of its share of the Total Commitments and the Borrower of the Equivalent Amount of
the total euro amount referred to in the Drawdown Notice.
Each of the Lenders and the Borrower hereby further instructs:
|
|
3.2.3
|
the Agent to pay to the Swap Agent the Equivalent Amount of the sum of the euro amounts so notified to it in accordance with Clause 3.2.1 from the amounts received by
the Agent from the Lenders on the Drawdown Date pursuant to their obligation to make the Loan available in accordance with Clause 2.1; and
|
|
|
3.2.4
|
the Agent to procure that the Swap Agent pays to the Agent the sum of the euro amounts referred to in Clause 3.2.1 on the Drawdown Date in exchange for the sum referred
to in Clause 3.2.3.
|
Each of the instructions contained in this Clause 3.2 is irrevocable.
Each of the Lenders, the Agent and the Borrower expressly acknowledges that the funding terms set out in this Clause may only be modified
with the agreement of the Swap Agent, the Agent, the Lenders and the Borrower.
|
3.3
|
Borrower’s irrevocable payment instructions
|
The Lenders shall not be obliged to fulfil their obligation to make the Loan available other than by paying the Builder the Total Financed Contract Price (or (as the context may require) the amount
thereof requested to be paid) on behalf of and in the name of the Borrower and by reimbursing the Agent for the related Coface Premium.
Each of the Lenders and the Borrower hereby instructs the Agent in accordance with this Clause 3.3:
20
|
|
3.3.1
|
to pay to the Builder:
|
|
|
(a)
|
the amount in euro remaining due under the Building Contract up to an amount equal to the lesser of five hundred and eighty eight million euro (EUR588,000,000) and
eighty per cent. (80%) of the Contract Price of the Vessel prior to any Change Order; and
|
|
|
(b)
|
subject to Clause 2.2, the amount in euro up to the lesser of fifty eight million eight hundred thousand euro (EUR58,800,000) and eighty per cent. (80%) of the
Change Order Amount capped at [*] of the Financed Contract Price,
|
in each case from the sum referred to in
Clause 3.2.4; and
|
|
3.3.2
|
to reimburse the Agent in Dollars, by drawing under the Loan, the related Coface Premium.
|
The payment instruction contained in this Clause 3.3 is irrevocable.
Subject to Clause 3.1, payment will be made to the Builder by a single advance in euro on the Delivery Date of the Vessel during usual
banking hours in the French Republic to the Builder’s account as specified by the Builder in accordance with the Building Contract after receipt and verification by the Agent of the documents provided under Appendix I.
Verification of the documents provided under Appendix I shall be limited to checking their apparent compliance as defined in the Uniform
Customs and Practices for Documentary Credits—ICC Publication 600 (UCP 600 latest revision).
The Borrower expressly
acknowledges that the payment terms set out in this Clause may only be modified with the agreement of the Builder, the Agent, the Lenders and the Borrower in the case of Clause 3.3.1 and with the agreement of the Agent, the Lenders and the Borrower
in the case of Clause 3.3.2.
Drawing may not be made under this Agreement (and the Loan shall not be available) after the
earlier of the Delivery Date and the Availability Termination Date.
However, the Lenders will use their best efforts to agree
to a postponement of the Availability Termination Date upon application by the Borrower accompanied by an explanation in reasonable detail of the reason for the delay in the Intended Delivery Date beyond the Availability Termination Date. The
Borrower acknowledges that any such postponement is subject to the prior written approval of Coface.
|
4.
|
REPAYMENT OF LOAN AND PAYMENT OF INTEREST
|
|
4.1
|
Repayment of Loan and payment of interest
|
The Borrower shall repay and pay to the Lenders in Dollars by twenty four (24) consecutive half yearly instalments and payments respectively:
|
|
4.1.1
|
the relevant principal amount of the Loan drawn down under this Agreement calculated by the Agent following the Drawdown Date on the following assumptions:
|
|
|
(a)
|
interest on the Loan is payable at the LIBOR applicable for the first Interest Period plus one point six seven five per cent. (1.675%) per annum throughout the
Security Period;
|
21
|
|
(b)
|
the Loan plus interest at the rate referred to in Clause 4.1.1(a) is to be repaid to the Lenders in twenty four (24) equal half yearly instalments; and
|
|
|
(c)
|
there are no Mandatory Costs; plus
|
|
|
4.1.2
|
interest on the Loan for the relevant Interest Period at LIBOR plus the applicable Margin plus Mandatory Costs.
|
For illustrative purposes only, a specimen repayment schedule is set out in Appendix VII.
The first instalment of principal and payment of interest shall be due six (6) months after the Delivery Date and the final
instalment and payment shall be due on the Termination Date together with all other sums due under this Agreement. Interest shall be payable on the Loan from the Drawdown Date and calculated on the actual number of days elapsed in the relevant
Interest Period divided by three hundred and sixty (360).
The Agent shall deliver to the Borrower and the Lenders as soon as
practicable following such calculation, and in any event no later than ten (10) Business Days after the Drawdown Date, a repayment schedule setting out the dates and the amounts of the instalments up to and including the Termination Date.
The repayment schedule shall be sent by fax and, in the case of the Borrower, by international express courier.
In the absence of manifest error, the repayment schedule will constitute an unconditional and irrevocable undertaking by the Borrower to
pay the Lenders the amounts of principal set out therein.
The Borrower reserves the right to inform the Agent within ten
(10) Business Days of receipt of the repayment schedule by courier if it contains a material error and to request its correction.
|
4.2
|
Substitute basis of funding
|
|
|
4.2.1
|
Subject to Clause 4.2.2, if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by 11.00 a.m. London
time, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.
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|
|
4.2.2
|
If a Market Disruption Event occurs for any Interest Period, then the rate of interest on each Lender’s relevant Commitment for that Interest Period shall be the
percentage rate per annum which is the sum of:
|
|
|
(a)
|
the applicable Margin;
|
|
|
(b)
|
the rate notified to the Agent by that 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 that Lender of funding its relevant Commitment from whatever source it may reasonably select; and
|
|
|
(c)
|
the Mandatory Cost, if any, applicable to that Lender’s Commitment.
|
22
In this Agreement
“Market Disruption Event”
means:
|
|
(i)
|
at or about noon on the Quotation Date for the relevant Interest Period Reuters BBA Page LIBOR 01 is not available and none or only one of the Reference Banks supplies
a rate to the Agent to determine LIBOR for the relevant Interest Period; or
|
|
|
(ii)
|
before close of business in London on the Quotation Date for the relevant Interest Period, the Agent receives notifications from Lenders (in number exceeding thirty
four per cent. (34%) of the Lenders and whose Commitments are not less than thirty four per cent. (34%) of the Loan) that the cost to them of obtaining matching deposits in the London Interbank eurocurrency market would be in excess of
LIBOR.
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|
|
4.2.3
|
If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than
thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest.
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|
|
4.2.4
|
Any alternative basis agreed pursuant to Clause 4.2.3 shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties to this Agreement.
|
|
|
4.2.5
|
So long as any Substitute Basis is in force, the Agent, in consultation with the Borrower and the Lenders, shall from time to time, but not less often than monthly,
review whether or not the circumstances referred to in Clause 4.2.1 or Clause 4.2.2 still prevail with a view to returning to the normal provisions of this Agreement.
|
|
5.
|
CLAIMS OR DEFENCES MAY NOT BE OPPOSED TO THE LENDERS
|
The Borrower may not escape liability under the terms of this Agreement by opposing to the Lenders claims or defences of any kind whatsoever arising under the Building Contract, and in particular from its
performance, or from any other relationship between the Borrower and the Builder.
The
Coface Premium is due and payable on or prior to the Drawdown Date and proportionally to the amount of the Loan drawn down under this Agreement. A minimum non-refundable premium, being the Equivalent Amount of one thousand five hundred and fifteen
euro (EUR1,515), shall be paid to Coface upon signature of the Coface Insurance Policy. Otherwise, no Coface Premium is due if the Loan is not drawn down. Except as otherwise stated below in the case of a prepayment, the Coface Premium is not
refundable for any reason whatsoever.
The Borrower has requested and the Lenders have agreed to finance [*] of the Coface
Premium payable under this Agreement in accordance with Clauses 2.1.2 and 2.1.4 up to the Equivalent Amount of the amount being [*].
Consequently, the Borrower hereby irrevocably instructs the Agent to pay the Coface Premium in Dollars to Coface on the Borrower’s behalf and the financing of such payment shall be made by drawing
under the Loan in accordance with Clauses 2.1.2 and 2.1.4 of this Agreement. Notwithstanding any other provision of this Agreement, the Borrower acknowledges that the obligation of the Borrower to reimburse the Lenders in Dollars for the full amount
of the Coface Premium referred to in this Agreement as and when it arises is absolute and unconditional.
23
The Coface Premium financed by the Loan will be repayable in any event by the Borrower to
the Lenders in the manner specified in Clause 4 and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan.
If the Loan is prepaid in whole or in part by the Borrower and if no amounts are then due and unpaid by the Borrower to the Finance Parties, the Agent will, on receipt from Coface, refund to the Borrower
in Dollars the portion of the Coface Premium reimbursed by Coface. If there is an amount due and unpaid by the Borrower to the Finance Parties, the Agent shall apply any amount received from Coface in accordance with Clause 17.
Any refund of the Coface Premium will not exceed eighty per cent. (80%) of the amount of the Coface Premium for the period from the
prepayment date to the Termination Date.
The following fees
shall be paid to the Agent by the Borrower as required hereunder:
|
|
7.1.1
|
For the Mandated Lead Arrangers, an arrangement fee [*] payable:
|
|
|
(a)
|
as to [*] of such fee amount within ten (10) Business Days after the date of this Agreement; and
|
|
|
(b)
|
unless this Agreement is terminated pursuant to Clause 29, [*] of such fee amount on the first anniversary of the date of this Agreement.
|
|
|
7.1.2
|
For the Lenders, a commitment fee in euro for the period from the date of this Agreement to the Delivery Date of the Vessel, or the date of receipt by the Agent of the
written termination notice sent by the Borrower as described in Clause 29, whichever is the earliest, computed at the rate of:
|
|
|
(a)
|
[*] per annum for the first two (2) years after the date of this Agreement; and
|
|
|
(b)
|
[*] per annum thereafter.
|
This
commitment fee shall be calculated on the undrawn amount of the Maximum Loan Amount and paid in euro in arrears on the date falling six (6) months after the date of this Agreement and on each date falling at the end of each following
consecutive six (6) month period, with the exception of the commitment fee due in respect of the last period, which shall be paid on the Drawdown Date, or the date of receipt by the Agent of the written termination notice sent by the Borrower
as described in Clause 29, whichever is the earliest. The commitment fee shall be calculated on the actual number of days elapsed divided by three hundred and sixty (360).
|
|
7.1.3
|
For the Agent, an annual agency fee of [*] shall be paid within ten (10) Business Days of the date of this Agreement and, unless this Agreement is terminated
pursuant to Clause 29, on or before each anniversary date thereof until total repayment of the Loan.
|
|
|
7.1.4
|
For the Lenders, an amendment fee of nought point [*] of the Maximum Loan Amount. This amendment fee shall be deemed to have been earned on the date on which the Third
Supplemental Deed and the Amendment Documents have been signed by all the parties thereto but shall be payable on the date falling ninety (90) days prior to the Intended Delivery Date provided that if this Agreement is terminated pursuant to
Clause 29 prior to that date then the amendment fee shall be paid in full on the termination date.
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24
|
|
7.1.5
|
In relation to the Fourth Supplemental Deed, for each of the Lenders, an amendment fee of twenty thousand Dollars (USD20,000) in accordance with the Amendment Fee
Letter.
|
|
8.
|
TAXES, INCREASED COSTS, COSTS AND RELATED CHARGES
|
|
8.1
|
All Taxes legally payable in France as a consequence of the signature or performance of this Agreement shall be paid by the Lenders.
|
|
8.2
|
All Taxes legally payable outside France (other than taxes payable by each of the Lenders on its overall net income) as a consequence of the signature or performance of
this Agreement shall be paid by the Borrower. In consequence, all payments of principal and interest, interest on late payments, compensation, costs, fees and related charges, due in connection with this Agreement shall be made without any deduction
or withholding in respect of Taxes. The Borrower therefore hereby agrees expressly that if for any reason full payment of the above amounts is not made, it will immediately pay the Lenders the sums necessary to compensate exactly the effect of the
deductions or withholdings made in respect of Taxes. If the Borrower fails to perform this obligation, the Lenders shall be entitled, in accordance with Clause 13, either not to make available the Loan or, as the case may require, to require
immediate repayment of the Loan.
|
If an additional payment is made under this Clause and any Lender or the Agent
on its behalf determines that it has received or been granted a credit against or relief of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender or the Agent (as the case may be) shall, to
the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment and provided that it has received the cash benefit of such credit, relief or remission, pay to the Borrower such amount as
such Lender or the Agent shall in its reasonable opinion have concluded to be attributable to the relevant deduction or withholding. Any such payment shall be conclusive evidence of the amount due to the Borrower hereunder and shall be accepted by
the Borrower in full and final settlement of its rights of reimbursement hereunder in respect of such deduction or withholding. Nothing herein contained shall interfere with the right of any Lender and the Agent to arrange their respective tax
affairs in whatever manner they think fit.
|
8.3
|
If after the date of this Agreement by reason of:
|
|
|
8.3.1
|
any change in law or in its interpretation or administration; and/or
|
|
|
8.3.2
|
compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority including but without limitation the Basle Committee on
Banking Regulations and Supervisory Practices whether or not having the force of law:
|
|
|
(a)
|
any of the Lenders incurs a cost as a result of its performing its obligations under this Agreement and/or its advancing its Commitment hereunder; or
|
|
|
(b)
|
there is any increase in the cost to any of the Lenders of funding or maintaining all or any of the advances comprised in a class of advances formed by or including its
Commitment advanced or to be advanced by it hereunder; or
|
25
|
|
(c)
|
any of the Lenders incurs a cost as a result of its having entered into and/or its assuming or maintaining its commitment under this Agreement; or
|
|
|
(d)
|
any of the Lenders becomes liable to make any payment on account of Tax or otherwise (other than Tax on its overall net income) on or calculated by reference to the
amount of its Commitment advanced or to be advanced hereunder and/or any sum received or receivable by it hereunder; or
|
|
|
(e)
|
any of the Lenders suffers any decrease in its rate of return as a result of any changes in the requirements relating to capital ratios, monetary control ratios, the
payment of special deposits, liquidity costs or other similar requirements affecting that Lender,
|
then the
Borrower shall from time to time on demand pay to the Agent for the account of the relevant Lender or Lenders amounts sufficient to indemnify the relevant Lender or Lenders against, as the case may be, such cost, such increased cost (or such
proportion of such increased cost as is in the reasonable opinion of the relevant Lender or Lenders attributable to the funding or maintaining of its or their Commitment(s) hereunder) or such liability.
A Lender affected by any provision of this Clause 8.3 shall promptly inform the Agent after becoming aware of the relevant change and its
possible results (which notice shall be conclusive evidence of the relevant change and its possible results) and the Agent shall, as soon as reasonably practicable thereafter, notify the Borrower of the change and its possible results. Without
affecting the Borrower’s obligations under this Clause 8.3 and in consultation with the Agent, the affected Lender will then take all such reasonable steps as may be open to it to mitigate the effect of the change (for example (if then
possible) by changing its Facility Office or transferring some or all of its rights and obligations under this Agreement to another financial institution reasonably acceptable to the Borrower and the Agent). The reasonable costs of mitigating the
effect of any such change shall be borne by the Borrower save where such costs are of an internal administrative nature and are not incurred in dealings by any Lender with third parties.
|
8.4
|
The Borrower undertakes to pay to the Agent, upon demand, all reasonable costs and expenses, duties and fees, including but without limitation agreed legal costs, out
of pocket expenses and travel costs, incurred by the Mandated Lead Arrangers and the Original Lenders in connection with the negotiation, preparation and execution of all agreements, guarantees, security agreements and related documents entered
into, or to be entered into, for the purpose of the transaction contemplated hereby as well as all costs and expenses, duties and fees incurred by the Lenders in connection with the registration, filing, enforcement or discharge of the said
guarantees or security agreements, including without limitation the fees and expenses of legal advisers and insurance experts, the cost of registration and discharge of security interests and the related travel and out of pocket expenses; the
Borrower further undertakes to pay to the Agent all costs, expenses, duties and fees incurred by the Lenders in connection with any variation of this Agreement and the related documents, guarantees and security agreements, any supplements thereto
and waiver given in relation thereto, in connection with the enforcement or preservation of any rights under this Agreement and/or the related guarantees and security agreements, including in each case the fees and expenses of legal advisers, and in
connection with the consultations or proceedings made necessary by the acts of, or failure to act on the part of, the Borrower.
|
|
8.5
|
The Borrower undertakes to pay to the Agent, upon demand, any reasonable costs (including but without limitation any losses or costs incurred as a
result of the termination or liquidation of any foreign exchange hedge transaction entered into (externally or internally) for the purpose of providing the Exchange Rate) necessarily incurred by the Lenders, the Agent or the Swap Agent in funding
the Loan in accordance with Clause 3.2 or any other relevant
|
26
|
|
provision of this Agreement in the event that the Delivery Date or any Drawdown Date proposed in the Drawdown Notice is later than the Intended Delivery Date or such Drawdown Date (unless the
Borrower has given the Agent at least three (3) Business Days’ notification of such delay in the Delivery Date or such Drawdown Date) or for any other reason whatsoever. Any such funding costs incurred by the Swap Agent shall be deemed to
have been incurred by the Agent.
|
|
8.6
|
The Borrower shall reimburse any Lender that is a member of the Steering Committee on demand on a full indemnity basis for all documented charges and expenses
reasonably incurred (including value added tax or any similar tax thereon and including the fees and expenses of legal and other advisers) by that Lender in carrying out its duties as a member of the Steering Committee on or before 31 December
2010.
|
|
9.
|
REPRESENTATIONS AND WARRANTIES
|
|
|
9.1.1
|
The representations and warranties in Clause 9.2 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts
and circumstances subsisting, as if made on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents.
|
|
|
9.1.2
|
The representations and warranties in Clause 9.3 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts
and circumstances subsisting, as if made on the date falling sixty (60) days before the Intended Delivery Date and thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement
or any of the other Security Documents.
|
|
|
9.1.3
|
The representations and warranties in Clause 9.4 are made on the Delivery Date and shall be deemed to be repeated, with reference mutatis mutandis to the facts and
circumstances subsisting, as if made thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents.
|
|
9.2
|
Continuing representations and warranties
|
The Borrower represents and warrants to each of the Lenders that:
Each Obligor is
a company duly organised, constituted and validly existing under the laws of the country of its incorporation, possessing perpetual corporate existence, the capacity to sue and be sued in its own name and the power to own and charge its assets and
carry on its business as it is now being conducted.
|
|
9.2.2
|
Powers and authority
|
Each of the Obligors has the power to enter into and perform this Agreement and those of the other Security Documents to which it is a
party and the transactions contemplated hereby and thereby and has taken all necessary action to authorise the entry into and performance of this Agreement and such other Security Documents and such transactions.
27
This
Agreement, each other Transaction Document and each of the Apollo Transaction Documents constitutes (or will constitute when executed) legal, valid and binding obligations of each Obligor expressed to be a party thereto enforceable in accordance
with its respective terms and in entering into this Agreement and borrowing the Loan, the Borrower is acting on its own account.
|
|
9.2.4
|
Non-conflict with laws
|
The entry into and performance of this Agreement, the other Transaction Documents, the Apollo Transaction Documents and the transactions
contemplated hereby and thereby do not and will not conflict with:
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
the constitutional documents of any Obligor; or
|
|
|
(c)
|
any agreement or document to which any Obligor is a party or which is binding upon such Obligor or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on an Obligor or its assets pursuant to the provisions of any such agreement
or document, except for Permitted Liens.
Except for:
|
|
(a)
|
the filing of those Security Documents to be filed with the Registrar of Companies in Bermuda; and
|
|
|
(b)
|
the registration of the Mortgage through the relevant authority of the Maritime Registry,
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or
otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Transaction Documents to which any Obligor is a party and the transactions contemplated thereby have been
obtained or effected and are in full force and effect except authorisations, approvals, consents, licences, exemptions, filings and registrations required in the normal day to day course of the operation of the Vessel and not already obtained by the
Borrower.
|
|
9.2.6
|
Accuracy of information
|
All information furnished by any Obligor relating to the business and affairs of any Obligor in connection with this Agreement and the
other Transaction Documents was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading.
28
Each
Obligor has fully disclosed to the Agent all facts relating to each Obligor which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.
|
|
9.2.8
|
Pari passu or priority status
|
The claims of the Finance Parties against the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured creditors of the Borrower (other than claims of such creditors to
the extent that they are statutorily preferred) and in priority to the claims of any creditor of the Borrower who is also an Obligor.
The Borrower
is and shall remain, after the advance to it of the Loan, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the Insolvency Act 1986 (as from time to time amended) and the requirements
thereof.
Subject to clause 10.6 of the Guarantee, neither the Borrower nor any other Obligor has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against any of them for the reorganisation, winding-up, dissolution or for the appointment of a liquidator, administrator, receiver,
administrative receiver, trustee or similar officer of any of them or any or all of their assets or revenues nor has it sought any other relief under any applicable insolvency or bankruptcy law.
The
consolidated audited accounts of the Guarantor for the period ending on 31 December 2005 (which accounts have been prepared in accordance with GAAP) fairly represent the financial condition of the Guarantor as shown in such audited accounts.
None of the
Obligors nor any of their respective assets enjoys any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Transaction Documents or by any relevant or
applicable law.
|
|
9.2.13
|
Ownership of shares
|
All
the authorised and issued shares in each of the Borrower and the Manager shall be legally and beneficially owned directly or indirectly by the Guarantor and such structure shall remain so throughout the Security Period unless the prior consent of
the Lenders has been obtained. Further, no Event of Default has occurred under clause 11.2 of the Guarantee in respect of the ownership and/or control of the shares in the Guarantor.
29
|
|
9.2.14
|
Completeness of documents
|
The copies of the Building Contract, the Management Agreement, the Apollo Transaction Documents and any other relevant third party
agreements including but without limitation the copies of any documents in respect of the Insurances delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto
enforceable in accordance with their respective terms and, subject to Clauses 10.14 and 10.25, no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such
document inoperative or unenforceable.
Any
borrowing by the Borrower under this Agreement, and the performance of its obligations under this Agreement and the other Transaction Documents, will be for its own account and will not involve any breach by it of any law or regulatory measure
relating to “money laundering” as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Communities.
|
9.3
|
Semi-continuing representations and warranties
|
The Borrower represents and warrants to each of the Lenders that:
No event has
occurred which constitutes a default under or in respect of any Transaction Document to which any Obligor or the Builder is a party or by which any Obligor or the Builder may be bound (including (inter alia) this Agreement) and no event has occurred
which constitutes a default under or in respect of any agreement or document to which any Obligor is a party or by which any Obligor may be bound to an extent or in a manner which might have a material adverse effect, in the opinion of the Agent, on
the ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party.
None of
the assets or rights of any Obligor is subject to any Encumbrance except Permitted Liens.
No
litigation, arbitration or administrative proceedings are current or pending or, to its knowledge, threatened, which might, if adversely determined, have a material adverse effect on the ability of an Obligor to perform its obligations under the
Transaction Documents to which it is a party, save as disclosed by the Guarantor in its most recent US Securities Exchange Commission filing.
To the
best of its knowledge, each of the Obligors has complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all Taxes due and payable by it including but without limitation any disputed Taxes unless a
sufficient reserve has been made pending resolution of the dispute and no material claims are being asserted against any of the Obligors with respect to Taxes, which might, if such claims were successful, have a material adverse effect on the
ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party.
30
|
|
9.3.5
|
Ownership of assets
|
Each member of the Group has good and marketable title to all its assets which are reflected in the audited accounts referred to in
Clause 9.2.11.
None
of the Obligors has a place of business in any jurisdiction (except as already disclosed) which requires any of the Security Documents to be filed or registered in that jurisdiction to ensure the validity of the Security Documents to which it is a
party.
Each of the
Obligors:
|
|
(a)
|
is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or
protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters), including without limitation, laws,
regulations, conventions and agreements relating to:
|
|
|
(i)
|
emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazard substances,
petroleum and petroleum products and by-products (
“Materials of Environmental Concern”
); or
|
|
|
(ii)
|
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern (such laws, regulations,
conventions and agreements the
“Environmental Laws”
);
|
|
|
(b)
|
has all permits, licences, approvals, rulings, variances, exemptions, clearances, consents or other authorisations required under applicable Environmental Laws
(
“Environmental Approvals”
) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted;
|
|
|
(c)
|
has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential liability for, or a requirement to incur,
investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorney’s fees and expenses or fines or penalties, in
each case arising out of, based on or resulting from:
|
|
|
(i)
|
the presence or release or threat of release into the environment of any Material of Environmental Concern at any location, whether or not owned by such person; or
|
|
|
(ii)
|
circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval (
“Environmental Claim”
); and
|
31
there are no circumstances that may prevent or interfere with such full compliance in the
future.
There is no material Environmental Claim pending or threatened against any of the Obligors.
There are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the
release, emission, discharge or disposal of any Material of Environmental Concern, that could form the basis of any Environmental Claim against any of the Obligors.
|
9.4
|
Representations on the Delivery Date
|
The Borrower further represents and warrants to each of the Lenders that on the Delivery Date the Vessel will be:
|
|
9.4.1
|
in its absolute and unencumbered ownership save as contemplated by the Security Documents;
|
|
|
9.4.2
|
at least provisionally registered in its name under the laws and flag of the Maritime Registry;
|
|
|
9.4.3
|
classed with the highest classification available for a vessel of its type free of all recommendations and qualifications with Det Norske Veritas;
|
|
|
9.4.4
|
operationally seaworthy and in compliance with all relevant provisions, regulations and requirements (statutory or otherwise) applicable to ships registered under the
laws and flag of the Maritime Registry;
|
|
|
9.4.5
|
in compliance with the ISM Code, the ISPS Code and Annex VI;
|
|
|
9.4.6
|
insured in accordance with the provisions of Clause 10.20 and in compliance with the requirements therein in respect of such insurances; and
|
|
|
9.4.7
|
managed by the Manager on and subject to the terms set out in the Management Agreement.
|
|
|
10.1.1
|
The undertakings in Clauses 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.13, 10.15, 10.17, 10.23, 10.24 and 10.25 shall remain in full force and
effect until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents.
|
|
|
10.1.2
|
The undertakings in Clauses 10.12, 10.14, 10.16, 10.18, 10.19, 10.20, 10.21 and 10.22 shall apply with effect from, and shall remain in full force and effect after, the
date falling sixty (60) days before the Intended Delivery Date until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents.
|
32
The Borrower
will provide to the Agent for the benefit of the Lenders (or will procure the provision of):
|
|
10.2.1
|
as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its unaudited
accounts for that year and a Certified Copy of the audited accounts of the Guarantor and its consolidated Subsidiaries for that year (commencing with accounts made up to 31 December in the year in which the Drawdown Date occurs in the case of
the Borrower and with accounts made up to 31 December 2005 in the case of the consolidated accounts of the Guarantor);
|
|
|
10.2.2
|
as soon as practicable (and in any event within sixty (60) days of the end of each quarter of each financial year) a copy of the unaudited consolidated accounts of
the Guarantor for that quarter (commencing with unaudited accounts made up to 30 June 2006);
|
|
|
10.2.3
|
promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the Group as the Agent may
request for the benefit of the Finance Parties; and
|
|
|
10.2.4
|
details of any material litigation, arbitration or administrative proceedings which affect any Obligor as soon as the same are instituted and served, or, to the
knowledge of the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [*] or the equivalent in another currency).
|
All accounts required under this Clause 10.2 shall be prepared in accordance with GAAP and shall fairly represent the financial condition
of the relevant company. In this Clause 10.2 and in Clause 9.3.5
“Group”
shall have the meaning ascribed to it in clause 11.4 of the Guarantee.
|
10.3
|
Notification of default
|
The Borrower will notify the Agent of any Event of Default forthwith upon becoming aware of the occurrence thereof. Upon the Agent’s
request from time to time the Borrower will issue a certificate stating whether any Obligor is aware of the occurrence of any Event of Default.
|
10.4
|
Consents and registrations
|
The Borrower will procure that (and will promptly furnish Certified Copies to the Agent on the request of the Agent of) all such
authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it or any Obligor to perform its obligations under, and ensure the validity or enforceability of, each of the
Transaction Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before the Drawdown Date the
Borrower will procure the filing or registration within applicable time limits of each Security Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Security
Documents.
33
The
Borrower will not create or permit to subsist any Encumbrance on the whole or any part of its present or future assets, except for the following:
|
|
10.5.1
|
Encumbrances created with the prior written consent of the Lenders; or
|
[*]
Except with
the prior consent of all the Lenders, the Borrower shall not, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of any of its
assets except in the case of items being replaced or renewed provided that the net impact is not a reduction in the value of the Vessel provided that the number of vessels in the Group Fleet on the Second Restatement Date shall not be decreased by
more than half.
Except with the prior consent of the Agent, the Borrower shall not make or threaten to make any substantial change in its business as
presently conducted, namely that of a single ship owning company for the Vessel, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the opinion of the Agent, the Borrower’s
ability to perform its obligations hereunder and the Borrower will procure that the other Obligors continue, throughout the Security Period, to perform their current business activities provided that any change or discontinuation in the business
activities of any Obligor (other than the Borrower) in accordance with the Apollo-Related Transactions shall be permitted.
Except with the
prior consent of the Lenders, the Borrower will not enter into any amalgamation, restructure, substantial reorganisation, merger, de-merger or consolidation or anything analogous to the foregoing nor will it acquire any equity, share capital or
obligations of any corporation or other entity.
|
10.9
|
Maintenance of status and franchises
|
The Borrower will do all such things as are necessary to maintain its corporate existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is
conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business.
The
Borrower will keep proper books of record and account, in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Borrower in accordance with GAAP.
34
|
10.11
|
Financial indebtedness and subordination of indebtedness
|
|
|
10.11.1
|
Otherwise than in the ordinary course of business as owner of the Vessel, except as contemplated by this Agreement and except any loan, advance or credit extended by
the Guarantor or any member of the Group which is a wholly owned Subsidiary of the Guarantor, the Borrower will not create, incur, assume or allow to exist any financial indebtedness, enter into any finance lease or undertake any material capital
commitment (including but not limited to the purchase of any capital asset).
|
|
|
10.11.2
|
The Borrower shall procure that any and all indebtedness (and in particular with any other Obligor and/or any shareholder of the Guarantor) is at all times fully
subordinated to the Security Documents and the obligations of the Borrower hereunder. The Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing
indebtedness with any shareholder of the Guarantor. Upon the occurrence of an Event of Default the Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or
representing indebtedness with any other Obligor. In this Clause “fully subordinated” shall mean that any claim of the lender against the Borrower in relation to such indebtedness shall rank after and be in all respects subordinate to all
of the rights and claims of the Finance Parties under this Agreement and the other Security Documents and that the lender shall not take any steps to enforce its rights to recover any monies owing to it by the Borrower and in particular but without
limitation the lender will not institute any legal or quasi-legal proceedings under any jurisdiction at any time against the Vessel, her Earnings or Insurances or the Borrower and it will not compete with the Finance Parties or any of them in a
liquidation or other winding-up or bankruptcy of the Borrower or in any proceedings in connection with the Vessel, her Earnings or Insurances.
|
|
10.12
|
Pooling of earnings and charters
|
The Borrower will not enter into in respect of the Vessel, nor permit to exist:
|
|
10.12.1
|
any pooling agreement or other arrangement for the sharing of any of the Earnings or the expenses of the Vessel except with a member of the Group and provided that it
does not adversely affect the rights of the Finance Parties under the Assignment of Earnings in the reasonable opinion of the Agent; or
|
|
|
10.12.2
|
any demise or bareboat charter; or
|
|
|
10.12.3
|
any charter whereunder two (2) months’ charterhire (or the equivalent thereof) is payable in advance in respect of the Vessel; or
|
|
|
10.12.4
|
any charter of the Vessel or contract of affreightment or employment which, with the exercise of options for extension, could be for a period longer than thirteen
(13) months; or
|
|
|
10.12.5
|
any charter of the Vessel or contract of affreightment or employment whereunder the hire payable is below approximately the market rate prevailing when the
Vessel’s letting or employment is fixed,
|
but if, with the prior written consent of the Agent, the Borrower
enters into in respect of the Vessel a charter with a company outside the Group, the Borrower hereby undertakes to execute in favour of the Finance Parties an assignment of such charter and the Earnings therefrom such assignment to be in
substantially the form of the Assignment of Earnings and
35
|
|
as required by the Agent provided however that the Borrower may in respect of the Vessel enter into a bareboat charter in form approved by the Agent with any company which is a member of the
Group provided that if so requested by the Agent and without limitation:
|
|
|
10.12.6
|
any such bareboat charterer shall enter into such deeds (including but not limited to a subordination and assignment deed), agreements and indemnities as the Agent
shall in its sole discretion require prior to entering into the bareboat charter with the Borrower; and
|
|
|
10.12.7
|
the Borrower shall assign the benefit of any such bareboat charter and its interest in the Insurances to the Finance Parties by way of further security for the
Borrower’s obligations under the Security Documents.
|
|
10.13
|
Loans and guarantees by the Borrower
|
Otherwise than in the ordinary course of business as owner of the Vessel, the Borrower will not make any loan or advance or extend credit to any person, firm or corporation or issue or enter into any
guarantee or indemnity or otherwise become directly or contingently liable for the obligations of any other person, firm or corporation.
|
10.14
|
Management and employment
|
Except with the prior consent of the Agent, the Borrower will not:
|
|
10.14.1
|
permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel;
|
|
|
10.14.2
|
permit any amendment to be made to the terms of the Management Agreement unless the amendment is advised by the Borrower’s tax counsel or is deemed necessary by
the parties thereto to reflect the prevailing circumstances but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations
under the Transaction Documents; or
|
|
|
10.14.3
|
permit the Vessel to be employed other than within the NCL brand.
|
|
10.15
|
Acquisition of shares
|
The Borrower will not acquire any equity, share capital, assets or obligations of any corporation or other entity or permit its shares to
be held other than directly or indirectly by the Guarantor.
|
10.16
|
Trading with the United States of America
|
The Borrower shall in respect of the Vessel take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended
and/or re-enacted from time to time hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a
“Relevant Jurisdiction”
) where the Vessel trades in the territorial
waters of the United States of America or a Relevant Jurisdiction and, for this purpose, the Borrower shall, inter alia, enter into a “Carrier Initiative Agreement” with the United States’ Customs Service (if such is possible) or into
voluntary arrangements made under the Customs-Trade Partnership Against Terrorism of the United States of America (if such is possible and appropriate to cruise vessels) and procure that the same (or a similar agreement or arrangement in a Relevant
Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant
Jurisdiction related trading.
36
The
Borrower will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider
necessary for giving full effect to any of the Transaction Documents or the Coface Insurance Policy or securing to the Finance Parties the full benefit of the rights, powers and remedies conferred upon the Finance Parties or any of them in any such
Transaction Document.
|
10.18
|
Valuation of the Vessel
|
|
|
10.18.1
|
The Borrower will from time to time (but at intervals no more frequently than annually at the Borrower’s expense unless an Event of Default has occurred and is
continuing) within thirty (30) days of receiving any request to that effect from the Agent, procure that the Vessel is valued by an independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower and
approved by the Agent (which approval shall not be unreasonably withheld or delayed and such valuation to be made with or without taking into account the benefit or otherwise of any fixed employment relating to the Vessel as the Agent may require).
|
|
|
10.18.2
|
If the Borrower does not accept the valuation obtained pursuant to Clause 10.18.1 (the
“First Valuation”
) it may (at its own expense) within five
(5) Business Days of receipt of the First Valuation obtain a second valuation (the
“Second Valuation”
) from another independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower
and approved by the Agent which approval shall not be unreasonably withheld or delayed.
|
|
|
10.18.3
|
If the Second Valuation exceeds the First Valuation by a margin of no less than ten per cent. (10%) of the First Valuation the Borrower may at its expense
forthwith upon receipt of the Second Valuation request the shipbrokers and/or shipvaluers appointed pursuant to Clauses 10.18.1 and 10.18.2 to obtain a third valuation (the
“Third Valuation”
) from a further independent reputable
shipbroker or shipvaluer experienced in valuing cruise ships approved by the Agent such approval not to be unreasonably withheld or delayed. Subject to the Third Valuation being made available within five (5) Business Days of the date of the
Second Valuation, the valuation of the Vessel will be determined on the basis of the average of the three valuations so obtained. If the Third Valuation is not made available within the aforementioned time limit, the Vessel shall be valued on the
basis of the average of the First Valuation and the Second Valuation.
|
|
|
10.18.4
|
The Borrower shall procure that forthwith upon the issuance of any valuation obtained pursuant to this Clause 10.2 a copy thereof is sent directly to the Agent for
review.
|
The Borrower
will procure that the Earnings (if any) are paid in full without set off and free and clear of and without deduction for any taxes levies duties imposts charges fees restrictions or conditions of any nature whatsoever.
37
The Borrower
covenants with the Finance Parties and undertakes:
|
|
10.20.1
|
from the Delivery Date until the end of the Security Period to insure the Vessel in its name and keep the Vessel insured on an agreed value basis for an amount in the
currency in which the Loan is denominated approved by the Agent but not being less than the greater of:
|
|
|
(a)
|
one hundred and twenty five per cent. (125%) of the amount of the Loan; and
|
|
|
(b)
|
the full market and commercial value of the Vessel determined in accordance with Clause 10.2 from time to time
|
through internationally recognised independent first class insurance companies, underwriters, war risks and protection and indemnity
associations acceptable to the Agent in each instance on terms and conditions approved by the Agent including as to deductibles but at least in respect of:
|
|
(i)
|
fire and marine risks including but without limitation hull and machinery and all other risks customarily and usually covered by first-class and prudent shipowners in
the London insurance markets under English marine policies or Agent-approved policies containing the ordinary conditions applicable to similar vessels;
|
|
|
(ii)
|
war risks and war risks (protection and indemnity) up to the insured amount;
|
|
|
(iii)
|
excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not recoverable in consequence of the
value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
|
|
|
(iv)
|
protection and indemnity risks with full standard coverage as offered by first-class protection and indemnity associations and up to the highest limit of liability
available (for oil pollution risk the highest limit currently available is one billion Dollars (USD1,000,000,000) and this to be increased if reasonably requested by the Agent and the increase is possible in accordance with the standard protection
and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class cruise shipowners or operators in waters where the Vessel trades from time to time from the Delivery Date until the end of the Security
Period);
|
|
|
(v)
|
when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks; and
|
|
|
(vi)
|
such other risks as the Agent may from time to time reasonably require;
|
and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in respect of similar tonnage provided that if any of
such insurances are also effected in the name of any other person (other than the Borrower and/or a Finance Party) such person shall if so required by the Agent execute a first priority assignment of its interest in such insurances in favour of the
Finance Parties in similar terms mutatis mutandis to the Assignment of Insurances;
38
|
|
10.20.2
|
to agree that the Agent shall take out mortgagee interest insurance on such conditions as the Agent may reasonably require and mortgagee interest insurance for
pollution risks as from time to time agreed each for an amount in the currency in which the Loan is denominated of one hundred and ten per cent. (110%) of the amount of the Loan, the Borrower having no interest or entitlement in respect of such
policies; the Borrower shall upon demand of the Agent reimburse the Agent for the costs of effecting and/or maintaining any such insurance(s) and the Agent hereby undertakes to use its reasonable endeavours to match the premium level that the
Borrower would have paid if the Borrower itself had arranged such cover on such conditions (as demonstrated to the reasonable satisfaction of the Agent);
|
|
|
10.20.3
|
if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the
“EEZ”
) as such term
is defined in the US Oil Pollution Act 1990 (
“OPA”
), to comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may
or will trade at any time during the existence of this Agreement and in particular before such trade is commenced and during the entire period during which such trade is carried on:
|
|
|
(a)
|
to pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Vessel in the market;
|
|
|
(b)
|
to make all such quarterly or other voyage declarations as may from time to time be required by the Vessel’s protection and indemnity association and to comply
with all obligations in order to maintain such cover, and promptly to deliver to the Agent copies of such declarations;
|
|
|
(c)
|
to submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by the Vessel’s protection and indemnity
insurers to maintain cover for such trade and promptly to deliver to the Agent copies of reports made in respect of such surveys;
|
|
|
(d)
|
to implement any recommendations contained in the reports issued following the surveys referred to in Clause 10.20.3(c) within the time limit specified therein and to
provide evidence satisfactory to the Agent that the protection and indemnity insurers are satisfied that this has been done;
|
|
|
(e)
|
in particular strictly to comply with the requirements of any applicable law, convention, regulation, proclamation or order with regard to financial responsibility for
liabilities imposed on the Borrower or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and to provide the Agent on demand with such information or evidence as it may
reasonably require of such compliance;
|
|
|
(f)
|
to procure that the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ
or any other provision analogous thereto and to provide the Agent with evidence that this is so; and
|
39
|
|
(g)
|
strictly to comply with any operational or structural regulations issued from time to time by any relevant authorities under OPA so that at all times the Vessel falls
within the provisions which limit strict liability under OPA for oil pollution;
|
|
|
10.20.4
|
to give notice forthwith of any assignment of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form
approved by the Agent;
|
|
|
10.20.5
|
to execute and deliver all such documents and do all such things as may be necessary to confer upon the Finance Parties legal title to the Insurances in respect of the
Vessel and to procure that the interest of the Finance Parties is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable clause in the form approved by the Agent shall be filed
with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form approved by the Agent shall be endorsed upon the protection and indemnity certificates of entry in respect
of the Vessel;
|
|
|
10.20.6
|
to procure that each of the relevant brokers and associations furnishes the Agent with a letter of undertaking in such form as may be required by the Agent and waives
any lien for premiums or calls except in relation to premiums or calls solely attributable to the Vessel;
|
|
|
10.20.7
|
punctually to pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce all relevant receipts when so
required by the Agent;
|
|
|
10.20.8
|
to renew each of the Insurances on the Vessel at least five (5) days before the expiry thereof and to give immediate notice to the Agent of such renewal and to
procure that the relevant brokers or associations shall promptly confirm in writing to the Agent that such renewal is effected it being understood by the Borrower that any failure to renew the Insurances on the Vessel at least five (5) days
before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default;
|
|
|
10.20.9
|
to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war risks association;
|
|
|
10.20.10
|
to furnish the Agent from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies,
underwriters, associations or clubs with which such Insurances are placed;
|
|
|
10.20.11
|
not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Agent nor to do any act or voluntarily suffer or
permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of
the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose;
|
|
|
10.20.12
|
not without the prior written consent of the Agent to settle, compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim of
less than ten million Dollars (USD10,000,000) or the equivalent in any other currency and not being a claim arising out of a Total Loss;
|
40
|
|
10.20.13
|
promptly to furnish the Agent with full information regarding any casualties or other accidents or damage to the Vessel involving an amount in excess [*];
|
|
|
10.20.14
|
to apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all
damage in respect whereof the insurance monies shall have been received;
|
|
|
10.20.15
|
that in the event of it making default in insuring and keeping insured the Vessel as hereinbefore provided then the Agent may (but shall not be bound to) insure the
Vessel or enter the Vessel in such manner and to such extent as the Agent in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with interest thereon at the Interest Rate shall be paid on
demand by the Borrower to the Agent; and
|
|
|
10.20.16
|
to agree that the Agent shall be entitled from time to time (but at intervals no more frequently than annually at the Borrower’s expense up to an amount of ten
thousand euro (EUR10,000) annually, except in the case that the Delivery Date and any renewal or amendment of the Insurances to be assigned to the Finance Parties pursuant to the Assignment of Insurances fall within one (1) year of each other
or such Insurances are amended within one (1) year of the Delivery Date or their renewal (as the case may be)) to instruct independent reputable insurance advisers for the purpose of obtaining any advice or information regarding any matter
concerning the Insurances which the Agent shall at its sole discretion deem necessary, it being hereby specifically agreed that it shall reimburse the Agent on demand for all reasonable costs and expenses incurred by the Agent in connection with the
instruction of such advisers as aforesaid.
|
|
10.21
|
Operation and maintenance of the Vessel
|
From the Delivery Date until the end of the Security Period at its own expense the Borrower will:
|
|
10.21.1
|
keep the Vessel in a good and efficient state of repair so as to maintain it to the highest classification notation available for the Vessel of its age and type free of
all recommendations and qualifications with Det Norske Veritas. On the Delivery Date and annually thereafter, it will furnish to the Agent a statement by such classification society that such classification notation is maintained. It will comply
with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on board as and when required thereby valid certificates showing compliance therewith and shall procure that
all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any substantial
modifications or alterations to the Vessel or any part thereof which would reduce the market and commercial value of the Vessel determined in accordance with Clause 10.18 without the prior consent of the Agent;
|
|
|
10.21.2
|
submit the Vessel to continuous survey in respect of its machinery and hull and such other surveys as may be required for classification purposes and, if so required by
the Agent, supply to the Agent copies in English of the survey reports;
|
41
|
|
10.21.3
|
permit surveyors or agents appointed by the Agent to board the Vessel at all reasonable times to inspect its condition or satisfy themselves as to repairs proposed or
already carried out and afford all proper facilities for such inspections;
|
|
|
10.21.4
|
comply, or procure that the Manager will comply, with the ISM Code (as the same may be amended from time to time) or any replacement of the ISM Code (as the same may be
amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISM Code and at all times thereafter:
|
|
|
(a)
|
hold, or procure that the Manager holds, a valid Document of Compliance duly issued to the Borrower or the Manager (as the case may be) pursuant to the ISM Code and a
valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code;
|
|
|
(b)
|
provide the Agent with copies of any such Document of Compliance and Safety Management Certificate as soon as the same are issued; and
|
|
|
(c)
|
keep, or procure that there is kept, on board the Vessel a copy of any such Document of Compliance and the original of any such Safety Management Certificate;
|
|
|
10.21.5
|
comply, or procure that the Manager will comply, with the ISPS Code (as the same may be amended from time to time) or any replacement of the ISPS Code (as the same may
be amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISPS Code and at all times thereafter:
|
|
|
(a)
|
keep, or procure that there is kept, on board the Vessel the original of the International Ship Security Certificate; and
|
|
|
(b)
|
keep, or procure that there is kept, on board the Vessel a copy of the ship security plan prepared pursuant to the ISPS Code;
|
|
|
10.21.6
|
comply with Annex VI (as the same may be amended from time to time) or any replacement of Annex VI (as the same may be amended from time to time) and in particular,
without limitation, to:
|
|
|
(a)
|
procure that the Vessel’s master and crew are familiar with, and that the Vessel complies with, Annex VI; and
|
|
|
(b)
|
maintain for the Vessel throughout the Security Period a valid and current IAPPC and provide a copy to the Agent; and
|
|
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC;
|
|
|
10.21.7
|
not employ the Vessel or permit its employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or
prohibited goods or in any manner whatsoever which may render it liable to condemnation in a prize court or to destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world
(whether war be declared or not) it will not employ the Vessel or permit its employment in carrying any contraband goods;
|
42
|
|
10.21.8
|
promptly provide the Agent with (a) all information which the Agent may reasonably require regarding the Vessel, its employment, earnings, position and engagements
(b) particulars of all towages and salvages and (c) copies of all charters and other contracts for its employment and otherwise concerning it;
|
|
|
10.21.9
|
give notice to the Agent promptly and in reasonable detail upon the Borrower or any other Obligor becoming aware of:
|
|
|
(a)
|
accidents to the Vessel involving repairs the cost of which will or is likely to exceed [*];
|
|
|
(b)
|
the Vessel becoming or being likely to become a Total Loss;
|
|
|
(c)
|
any recommendation or requirement made by any insurer or classification society or by any competent authority which is not complied with, or cannot be complied with,
within any time limit relating thereto and that might reasonably affect the maintenance of either the Insurances or the classification of the Vessel;
|
|
|
(d)
|
any writ or claim served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, her Earnings or Insurances;
|
|
|
(e)
|
the Vessel ceasing to be registered under the flag of the Maritime Registry or anything which is done or not done whereby such registration may be imperilled;
|
|
|
(f)
|
it becoming impossible or unlawful for it to fulfil any of its obligations under the Security Documents; and
|
|
|
(g)
|
anything done or permitted or not done in respect of the Vessel by any person which is likely to imperil the security created by the Security Documents;
|
|
|
10.21.10
|
promptly pay and discharge all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel
and keep proper books of account in respect thereof provided always that the Borrower shall not be obliged to compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of any
such contested debt, damage or liability which, either individually or in aggregate exceeds [*] shall forthwith be provided to the Agent. As and when the Agent may so require the Borrower will make such books available for inspection on behalf of
the Agent and provide evidence satisfactory to the Agent that the wages and allotments and the insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crew’s wages in respect of any tax
liability are being properly accounted for and that the master has no claim for disbursements other than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection;
|
|
|
10.21.11
|
maintain the type of the Vessel as at the Delivery Date and not put the Vessel into the possession of any person without the prior consent of the Agent for the purpose
of work being done on it in an amount exceeding or likely to exceed [*] unless such person shall first have given to the Agent a written undertaking addressed to the Agent in terms satisfactory to the Agent agreeing not to exercise a lien on the
Vessel or her Earnings for the cost of such work or for any other reason;
|
43
|
|
10.21.12
|
promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to
whose jurisdiction the Vessel may from time to time be subject and in particular the Borrower hereby agrees to indemnify and hold the Finance Parties, their successors, assigns, directors, officers, shareholders, employees and agents harmless from
and against any and all claims, losses, liabilities, damages, expenses (including attorneys, fees and expenses and consultant fees) and injuries of any kind whatsoever asserted against the Finance Parties, with respect to or as a result of the
presence, escape, seepage, spillage, release, leaking, discharge or migration from the Vessel or other properties owned or operated by the Borrower of any hazardous substance, including without limitation, any claims asserted or arising under any
applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all governmental agencies, regardless of whether or not caused by or within the control of the Borrower subject to the
following:
|
|
|
(a)
|
it is the parties’ understanding that the Finance Parties do not now, have never and do not intend in the future to exercise any operational control or maintenance
over the Vessel or any other properties and operations owned or operated by the Borrower, nor in the past, presently, or intend in the future to, maintain an ownership interest in the Vessel or any other properties owned or operated by the Borrower
except as may arise upon enforcement of the Lenders’ rights under the Mortgage;
|
|
|
(b)
|
the indemnity and hold harmless contained in this Clause 10.21.12 shall not extend to the Finance Parties in their capacity as equity investors in the Borrower or as an
owner of any property or interest as to which the Borrower is also owner but only to their capacity as lenders, holders of security interests or beneficiaries of security interests; and
|
|
|
(c)
|
unless and until an Event of Default shall have occurred and without prejudice to the right of each Lender to be indemnified pursuant to this Clause 10.21.12:
|
|
|
(i)
|
each Lender will, if it is reasonably practicable to do so, notify the Borrower upon receiving a claim in respect of which the relevant Lender is or may become entitled
to an indemnity under this Clause 10.21.12;
|
|
|
(ii)
|
subject to the prior written approval of the relevant Lender which the Lender shall have the right to withhold, the Borrower will be entitled to take, in the name of
the relevant Lender, such action as the Borrower may see fit to avoid, dispute, resist, appeal, compromise or defend any such claims, losses, liabilities, damages, expenses and injuries as are referred to above in this Clause 10.21.12 or to recover
the same from any third party, subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred; and
|
|
|
(iii)
|
the relevant Lender will, to the extent that it is reasonably practicable to do so, seek the approval of the Borrower (such approval not to be
unreasonably withheld or delayed) before making any admission of liability, agreement or compromise with a third party, or any payment to a third party, in respect of such
|
44
|
|
claims, losses, liabilities, damages, expenses and injuries as are referred to above in this Clause 10.21.12 and, to the extent that the Borrower is entitled to take action in accordance
with sub-clause (ii) above and subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred, the relevant Lender will provide such information,
assistance and other co-operation as the Borrower may reasonably request in connection with such action,
|
provided always that the Borrower shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith
subject always that full details of any such contested liabilities which, either individually or in aggregate, [*] shall be forthwith provided to the Agent. If the Vessel is arrested or detained for any reason it will procure its immediate release
by providing bail or taking such other steps as the circumstances may require;
|
|
10.21.13
|
give to the Agent at such times as it may from time to time reasonably require a certificate, duly signed on its behalf, as to the total amount of any debts, damages
and liabilities relating to the Vessel and details of such of those debts, damages and liabilities as are over a certain amount to be specified by the Agent at the relevant time and, if so required by the Agent, forthwith discharge such of those
debts, damages and liabilities as the Agent shall require other than those being contested in good faith; and
|
|
|
10.21.14
|
maintain the registration of the Vessel under and fly the flag of the Maritime Registry and not do or permit anything to be done whereby such registration may be
forfeited or imperilled.
|
The Borrower
will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder (if
such shareholder is not the Guarantor) by way of dividend.
|
10.23
|
Irrevocable funding and payment instructions
|
None of the Agent, the Lenders or the Borrower shall modify, revoke or withhold the instructions set out in Clauses 3.2 and 3.3 without the agreement of the Builder (in the case of Clause 3.3.1 only), the
Agent, the Lenders or the other Lenders (as the case may be) and the Swap Agent (in the case of Clause 3.2 only).
|
10.24
|
“Know your customer” checks
|
If:
|
|
10.24.1
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
|
|
10.24.2
|
any change in the status of a Borrower after the date of this Agreement; or
|
45
|
|
10.24.3
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or
transfer, obliges the Agent or any Lender (or, in the case of Clause 10.24.3, any prospective New Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not
already available to it, the Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender)
or any Lender (for itself or, in the case of the event described in Clause 10.24.3, on behalf of any prospective New Lender) in order for the Agent, such Lender or, in the case of the event described in Clause 10.24.3, any prospective New Lender to
carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
The
Borrower shall not substantially modify the Building Contract, directly or indirectly, if, by reason of regulations which apply to a Lender, such modification would make such Lender’s Commitment impossible to fulfil or would change the
substance or form of its Commitment. The Borrower may, therefore, submit to the Lenders any proposals for modification which, in its opinion, might have such a consequence, and the Lenders will indicate in a timely manner whether the modification
proposed will allow the Loan to be maintained.
On or about the last day of each successive period of three (3) months
commencing on the date of this Agreement and on the date of the Drawdown Notice, the Borrower undertakes to provide the Agent with a copy of any Change Order entered into during that three (3) month or other period. The Borrower also undertakes
to notify the Agent of any change in the Intended Delivery Date as soon as practicable after the change has occurred.
|
11.1
|
The Borrower may prepay all or part of the Loan (but if in part being an amount that reduces the Loan by a minimum amount of one (1) repayment instalment of
principal of the Loan) without penalty provided the prepayment is made on the relevant interest payment date and one (1) month’s prior written notice indicating the intended date of prepayment is given to the Agent, but compensation shall
be payable to the Lenders in the sum of the difference (if positive), calculated by the Lenders, between the actual cost for the Lenders of the funding for the Loan and the rate of interest for the monies to be invested by the Lenders, applied to
the amounts so prepaid for the period from said prepayment until the next interest prepayment date (if prepayment does not occur on an interest payment date). Details of any such calculation shall be supplied to the Borrower by the Lenders.
|
|
11.2
|
Any prepayment of the Loan shall be made together with all other sums due under this Agreement.
|
|
11.3
|
Amounts prepaid shall be applied in accordance with Clause 17.
|
|
11.4
|
Amounts prepaid may not be reborrowed.
|
|
12.
|
INTEREST ON LATE PAYMENTS
|
Without prejudice to the provisions of Clause 13 and without this Clause in any way constituting a waiver of terms of payment, all sums
due by the Borrower under this Agreement will automatically bear interest on a day to day basis from the date when they are payable until the date of actual payment at the higher of:
46
|
|
12.1.1
|
Overnight LIBOR plus [*]; and
|
|
|
12.1.2
|
the applicable interest rate fixed for the latest Interest Period plus [*].
|
To the extent that such amounts as set out in this Clause remain unpaid for a twelve (12) month period (after first becoming due), the unpaid interest will itself accrue interest at the rate set out
in this Clause until actual payment occurs.
|
13.
|
A
CCELERATION—EVENTS OF DEFAULT
|
|
13.1
|
If any one of the Events of Default set out in Clause 13.2 occurs and is continuing:
|
|
|
13.1.1
|
if the Loan has not been drawn down, no drawing under the Loan may be requested from the Lenders; or
|
|
|
13.1.2
|
if the Loan has already been drawn down, the Lenders may require immediate payment of the outstanding principal amount of the Loan (including but without limitation the
amount representing the financed Coface Premium) together with all other sums due under this Agreement:
|
|
13.2
|
The following are the Events of Default referred to in Clause 13.1:
|
The
Borrower or any other Obligor does not pay on the due date any amount of principal or interest of the Loan (provided however that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank or banks
through whom the relevant funds are being transmitted no Event of Default shall occur for the purposes of this Clause 13.2.1 until the expiry of three (3) Business Days following the date on which such payment is due), or within three
(3) Business Days of the due date any other amount payable by it under any Security Document to which it may at any time be a party including but without limitation any amount payable by the Guarantor under the Guarantee, at the place and in
the currency in which it is expressed to be payable.
|
|
13.2.2
|
Breach of other obligations
|
|
|
(a)
|
Any Obligor fails to comply with any provision of any Security Document and in particular but without limitation any failure by the Guarantor to comply with the
provisions of Clauses 9 (General Undertakings: Positive Covenants), 10 (General Undertakings: Negative Covenants) and/or 11 (Financial Undertakings and Ownership and Control of the Guarantor) of the Guarantee or there is any breach in the sole
opinion of the Agent of any of the Transaction Documents.
|
If the Loan has already been drawn down, an Event of
Default shall not have arisen if the failure (if in the opinion of the Agent in its sole discretion it is capable of remedy) has been remedied within a period of thirty (30) days from the date of its occurrence, if the failure was known to that
Obligor, or from the date the relevant Obligor is notified by the Agent of the failure, if the failure was not known to that Obligor, unless in any such case as aforesaid the Agent in its sole discretion considers that the failure is or could
reasonably be expected to become materially prejudicial to the interests, rights or position of the Lenders; or
|
|
(b)
|
If there is a repudiation or termination of any Transaction Document or if any of the parties thereto becomes entitled to terminate or repudiate any of them and
evidences an intention so to do.
|
47
Any
representation, warranty or statement made or repeated in, or in connection with, any Transaction Document or the Coface Insurance Policy or in any accounts, certificate, statement or opinion delivered by or on behalf of any Obligor thereunder or in
connection therewith is materially incorrect when made or would, if repeated at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct.
|
|
(a)
|
Any event of default occurs under any financial contract or financial document relating to any Financial Indebtedness of any member of the Group;
|
|
|
(b)
|
Any such Financial Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration
or otherwise;
|
|
|
(c)
|
Any Encumbrance over any assets of any member of the Group becomes enforceable;
|
|
|
(d)
|
Any other Financial Indebtedness of any member of the Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any
security for the same becomes enforceable by reason of default;
|
provided that:
|
|
(i)
|
No Event of Default will arise if the relevant Financial Indebtedness is not accelerated or, if it is accelerated but, in aggregate, the Financial Indebtedness is less
than [*]; and
|
|
|
(ii)
|
Financial Indebtedness being contested by the Borrower in good faith will be disregarded for a period of [*] from its occurrence if full details of the dispute are
submitted to the Agent forthwith upon its occurrence. If the dispute remains unresolved for a period of more than [*] from its occurrence, this Clause 13.2.4 shall not apply to that Financial Indebtedness.
|
Subject to
clause 10.6 of the Guarantee, any order is made or an effective resolution passed or other action taken for the suspension of payments or reorganisation, dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of
the Group.
|
|
13.2.6
|
Moratorium or arrangement with creditors
|
A moratorium in respect of all or any debts of any member of the Group or a composition or an arrangement with creditors of any member of the Group or any similar proceeding or arrangement by which the
assets of any member of the Group are submitted to the control of its creditors is applied for, ordered or declared or, [*].
48
|
|
13.2.7
|
Appointment of liquidators etc.
|
A liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer is appointed in respect of any member of the Group or in respect of all or any substantial part of the
assets of any member of the Group and in any such case such appointment is not withdrawn within thirty (30) days (the
“Grace Period”
) unless the Agent considers in its sole discretion that the interest of the Lenders might
reasonably be expected to be adversely affected in which event the Grace Period shall not apply.
Any member
of the Group becomes or is declared insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any applicable law.
Any
distress, execution, attachment or other process affects the whole or any substantial part of the assets of any member of the Group and remains undischarged for a period of twenty one (21) days or any uninsured judgment in excess of [*]
following final appeal remains unsatisfied for a period of thirty (30) days in the case of a judgment made in the United States of America and otherwise for a period of sixty (60) days provided that no Event of Default shall be deemed to
have occurred unless the distress, execution, attachment or other process adversely affects any Obligor’s ability to meet any of its material obligations under this Agreement or the other Security Documents or cause to occur any of the events
specified in Clauses 13.2.5 to 13.2.8 (the determination of which shall be in the Agent’s sole discretion).
Anything analogous to or having a substantially similar effect to any of the events specified in Clauses 13.2.5 to 13.2.9 shall occur
under the laws of any applicable jurisdiction.
|
|
13.2.11
|
Cessation of business
|
Subject to clause 10.6 of the Guarantee, any member of the Group ceases to carry on all or a substantial part of its business.
|
|
13.2.12
|
Revocation of consents
|
Any authorisation, approval, consent, licence, exemption, filing, registration or notarisation or other requirement necessary to enable
any Obligor to comply with any of its obligations under any of the Transaction Documents is materially adversely modified, revoked or withheld or does not remain in full force and effect and within ninety (90) days of the date of its occurrence
such event is not remedied to the satisfaction of the Agent and the Agent considers in its sole discretion that such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Lenders provided that
the Borrower shall not be entitled to the aforesaid ninety (90) day period if the modification, revocation or withholding of the authorisation, approval or consent is due to an act or omission of any Obligor and the Agent is satisfied in its
sole discretion that the Lenders’ interests might reasonably be expected to be materially adversely affected.
49
At any
time it is unlawful or impossible for any Obligor to perform any of its material (to the Finance Parties or any of them) obligations under any Transaction Document to which it is a party or it is unlawful or impossible for the Finance Parties or any
Lender to exercise any of their or its rights under any of the Transaction Documents, provided that no Event of Default shall be deemed to have occurred where:
|
|
(a)
|
the unlawfulness or impossibility preventing any Obligor from performing its obligations (other than its payment obligations under this Agreement, the other Transaction
Documents) is cured within a period of twenty one (21) days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Obligor within the aforesaid period, performs its obligation(s) (except where the
unlawfulness or impossibility adversely affects any Obligor’s payment obligations under this Agreement, the other Transaction Documents (the determination of which shall be in the Agent’s sole discretion) in which case the following
provisions of this Clause 13.2.13 shall not apply); and/or
|
|
|
(b)
|
where a Finance Party was aware of the default and could, in its sole discretion, mitigate the consequences of the unlawfulness or impossibility. The reasonable costs
of mitigating the consequences of the unlawfulness or impossibility shall be borne by the Borrower save where such costs are of an internal administrative nature and are not incurred in dealings by the Finance Party with third parties.
|
The Borrower
fails to insure the Vessel in the manner specified in Clause 10.20 or fails to renew the Insurances at least five (5) days prior to the date of expiry thereof and produce prompt confirmation of such renewal to the Agent.
If the
Borrower or any other member of the Group shall have concealed, removed, or permitted to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any
of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other
creditor.
|
|
13.2.16
|
Prejudice to security
|
Anything is done or suffered or omitted to be done by any Obligor which in the reasonable opinion of the Agent would or might be expected
to imperil the security created by any of the Security Documents.
|
|
13.2.17
|
Material adverse change
|
Any material adverse change in the business, assets or financial condition of any Obligor occurs which in the reasonable opinion of the
Agent would or might reasonably be expected to affect the ability of that Obligor duly
50
to perform any of its material obligations under any Security Document to which it is or may at any time be a party. For the purposes of this Clause 13.2.17 and without prejudice to the
generality of the expression
“material obligations”
any payment obligations of any Obligor shall be deemed material.
|
|
13.2.18
|
Governmental intervention
|
The authority of any member of the Group in the conduct of its business is wholly or substantially curtailed by any seizure or
intervention by or on behalf of any authority and within ninety (90) days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Agent reasonably considers that the relevant occurrence is or
might be expected to become materially prejudicial to the interests, rights or position of the Lenders provided that the Borrower shall not be entitled to the aforesaid ninety (90) day period if the seizure or intervention executed by any
authority is due to an act or omission of any member of the Group and the Agent is satisfied, in its sole discretion, that the Lenders’ interest might reasonably be expected to be materially adversely affected.
|
13.3
|
If at any time during the period commencing on the day after the date of this Agreement and ending on the date falling sixty (60) days before the Intended Delivery
Date (the
“Limited Period”
) any event should occur that would constitute an Event of Default, the Agent shall not be entitled to serve a notice under Clause 13.4 unless during the Limited Period:
|
|
|
13.3.1
|
there is a failure by an Obligor to perform any material obligation under the Transaction Documents on the relevant due date or within any applicable grace period,
including but without limitation if the Guarantor fails to provide to the Agent the statement referred to in Clause 3.1.4 in the manner described in that Clause; or
|
|
|
13.3.2
|
the relevant event would imperil the security created by the Guarantee.
|
In no event shall the provisions of this Clause 13.3 be interpreted as a waiver of the Agent’s right to serve a notice under Clause 13.4 in respect of any Event of Default which has occurred and is
continuing on the date falling sixty (60) days before the Intended Delivery Date.
|
13.4
|
Notice of any Event of Default and/or of the acceleration of the payment of the principal of the Loan, interest thereon and all other sums due under this Agreement
shall be given by the Agent in accordance with Clause 27.
|
|
13.5
|
In no event shall any delay in exercising the Lenders’ right to require advance repayment be interpreted as a waiver of this right.
|
|
13.6
|
Furthermore, in case of such accelerated repayment following an Event of Default, the Borrower shall be liable to pay to the Agent, in addition to the Coface Premium
pursuant to Clause 66, compensation calculated as provided for in Clause 11.
|
|
13.7
|
Following an Event of Default and for so long as the same is continuing, the Borrower irrevocably authorises the Agent and the Lenders to apply any credit balance to
which the Borrower is entitled upon any account of the Borrower with any branch of any of the Agent and the Lenders in or towards satisfaction of any sum due to the Agent or any Lender hereunder but unpaid, and to combine any accounts of the
Borrower for this purpose. If such set-off requires a credit balance in a currency other than the required currency to be transferred to an account maintained in connection herewith the transfer shall be effected by crediting to the account in
question the amount of the required currency which the Agent or the Lender (as the case may be) could obtain by exchanging such currency for the required currency at the rate of exchange at which its Facility Office would, at the opening of business
on the date on which the combination is effected, have sold the currency of that credit balance for the required currency for immediate delivery.
|
51
|
13.8
|
In the event that the accelerated amount is received by the Agent before the date of normal maturity of the accelerated interest payments, the Borrower shall, subject
to no sums remaining due to the Lenders from the Borrower, be entitled to refund of interest for the actual number of days between the date on which the Lenders received the amount and the normal date for payment of such amount.
|
|
14.1
|
Subject to Clause 14.2, the Borrower shall forthwith prepay the outstanding principal amount of the Loan (including but without limitation the amount representing the
financed Coface Premium) together with all other sums due under this Agreement if:
|
|
|
14.1.1
|
the Vessel shall become a Total Loss; or
|
|
|
14.1.2
|
if the Coface Insurance Policy is modified, suspended, terminated or rescinded unless caused by the wilful misconduct or gross negligence of a Finance Party.
|
|
14.2
|
However, if the Vessel shall become a Total Loss (but without prejudice to the Lenders’ rights to receive the proceeds of the Insurances or Compulsory Acquisition
forthwith upon collection as may be provided for in the Mortgage and/or the Assignment of Insurances), the Borrower shall not be required to pay its indebtedness under this Agreement earlier than the date which is one hundred and fifty
(150) days after the Total Loss Date.
|
|
14.3
|
The provisions of Clause 11 shall apply mutatis mutandis to any prepayment pursuant to this Clause 14.
|
The
funds for payment of all sums due by the Borrower under this Agreement, shall be paid in Dollars or euro (in the case that the payment is due in euro) to the credit of:
|
|
15.1.1
|
the account of BNP Paribas, Paris, Swift code: [*], account number [*] with BNP Paribas S.A., The Equitable Building, 787 Seventh Avenue, New York, New York NY 10019,
Swift code: [*], under the following reference: “BFI/LSI/BOCI Crédits Acheteurs—Commercial Loan Hull No D 33 dated 22 September 2006” in the case of Dollars; and
|
|
|
15.1.2
|
BNP Paribas, Paris, Swift code: [*], IBAN: [*], under the following reference: “BFI/LSI/BOCI Crédits Acheteurs—Commercial Loan Hull No D 33 dated
22 September 2006” in the case of euro.
|
These sums must be credited before 11.00 a.m. New York time or
11.00 a.m. Paris time (in the case that the payment is in euro) in freely transferable and convertible currency. For each payment to be made, the Borrower shall notify the Agent on the third Business Day prior to the due payment date that it will
issue instructions to its bank (which shall be named in such notification) to make the relevant payment.
52
All the
Borrower’s payment obligations under this Agreement shall be secured by:
|
|
16.1.1
|
the Guarantee to be signed within ten (10) Business Days of the date of this Agreement in favour of the Finance Parties;
|
|
|
16.1.2
|
the Mortgage to be executed and registered in favour of the Finance Parties forthwith upon delivery of the Vessel; and
|
|
|
16.1.3
|
the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement to be executed in favour of the
Finance Parties forthwith upon delivery of the Vessel.
|
|
17.
|
APPLICATION OF SUMS RECEIVED
|
All sums received under this Agreement by the Agent, on behalf of the Lenders, or by any of the Lenders for any reason whatsoever will, without prejudice to complementary provisions of the Mortgage, be
applied:
|
|
17.1.1
|
in priority, to payments of any kind due or in arrears in the order of their due payment dates and first, to fees, charges and expenses, second, to interest payable
pursuant to Clause 12, third, to interest payable pursuant to Clause 4, fourth, to the principal of the Loan payable pursuant to Clause 4 and, fifth, to any other sums due under this Agreement and, if relevant,
pro rata
to each of the
Lenders; or
|
|
|
17.1.2
|
if no payments are in arrears or if these payments have been discharged as set out above, then and to sums remaining due under this Agreement and, if relevant,
pro
rata
to each of the Lenders and in each case in inverse order of maturity, the interest being recalculated accordingly.
|
|
18.
|
CHANGES TO THE LENDERS
|
|
18.1
|
Assignments and transfers by the Lenders
|
Subject to this Clause 18, a Lender (the
“Existing Lender”
) may:
|
|
18.1.1
|
assign its rights; or
|
|
|
18.1.2
|
transfer by novation its rights and obligations,
|
to another bank or financial institution which is authorised by the French Authorities to enter into French export credits (the
“New Lender”
).
|
18.2
|
Conditions of assignment or transfer
|
|
|
18.2.1
|
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is to another Lender or an Affiliate of a
Lender.
|
|
|
18.2.2
|
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed.
|
|
|
18.2.3
|
The assignment or transfer must be with respect to a minimum Commitment of [*] or, if less, the Existing Lender’s full Commitment.
|
|
|
18.2.4
|
An assignment will only be effective on:
|
|
|
(a)
|
receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties as it would have been under if it was an Original Lender; and
|
53
|
|
(b)
|
performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such
assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
|
|
18.2.5
|
A transfer will only be effective if the procedure set out in Clause 18.5 is complied with.
|
|
|
(a)
|
a Lender assigns or transfers its rights or obligations under the Security Documents or changes its Facility Office; and
|
|
|
(b)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause 8,
|
then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under that Clause to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
|
18.3
|
Assignment or transfer fee
|
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of [*].
The New Lender shall also pay to the Agent, upon demand, all reasonable costs and expenses, duties and fees, including but without limitation legal costs and out of pocket expenses, incurred by the Agent or the Lenders in connection with any
necessary amendment to or supplementing of the Transaction Documents or any of them or the Coface Insurance Policy as a consequence of the assignment or transfer.
|
18.4
|
Limitation of responsibility of Existing Lenders
|
|
|
18.4.1
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
|
(a)
|
the legality, validity, effectiveness, adequacy or enforceability of the Security Documents or any other documents;
|
|
|
(b)
|
the financial condition of any Obligor;
|
|
|
(c)
|
the performance and observance by any Obligor of its obligations under the Security Documents or any other documents; or
|
|
|
(d)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Security Document or any other document,
|
and any representations or warranties implied by law are excluded.
54
|
|
18.4.2
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
|
(a)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities
in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Security Document; and
|
|
|
(b)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under
the Security Documents or any Commitment is in force.
|
|
|
18.4.3
|
Nothing in any Security Document obliges an Existing Lender to:
|
|
|
(a)
|
accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 18; or
|
|
|
(b)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Security Documents or
otherwise.
|
|
18.5
|
Procedure for transfer
|
|
|
18.5.1
|
Subject to the conditions set out in Clause 18.2 a transfer is effected in accordance with Clause 18.5.3 when the Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to Clause 18.5.2, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
|
|
18.5.2
|
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with
all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
|
|
18.5.3
|
On the Transfer Date:
|
|
|
(a)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Security Documents each of the
Obligors and the Existing Lender shall be released from further obligations towards one another under the Security Documents and their respective rights against one another under the Security Documents shall be cancelled (being the
“Discharged Rights and Obligations”
);
|
|
|
(b)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights
and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
|
|
(c)
|
the Agent, the Mandated Lead Arrangers, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Mandated Lead Arrangers and the Existing Lender
shall each be released from further obligations to each other under the Security Documents; and
|
|
|
(d)
|
the New Lender shall become a Party as a
“Lender”
.
|
55
|
18.6
|
Copy of Transfer Certificate to Borrower
|
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.
|
18.7
|
Permitted disclosure
|
Any
Finance Party may disclose to any of its Affiliates and to the following other persons:
|
|
18.7.1
|
any person to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement;
|
|
|
18.7.2
|
any person with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or any Obligor;
|
|
|
18.7.3
|
any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation;
|
|
|
18.7.4
|
any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course
of such person’s employ or duties;
|
|
|
18.7.5
|
Coface, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such
person’s employ or duties;
|
|
|
18.7.6
|
the Guarantor or any other member of the Group, or any employee, officer, director or representative of such entity which needs to know such information or receive such
document in the course of such person’s employ or duties; or
|
|
|
18.7.7
|
auditors, insurance and reinsurance brokers, insurers and reinsurers and professional advisers, including legal advisers, which need to know such information,
|
any information about any Obligor, this Agreement and the other Security Documents as that Finance Party shall
consider appropriate. Each of the Finance Parties may also disclose to the Builder, or any employee, officer, director or representative of the Builder which needs to know such information or receive such document in the course of such person’s
employ or duties, such information about any Obligor, this Agreement and the other Security Documents as that Finance Party reasonably considers normal practice for a French export credit.
Each of the Finance Parties acknowledges that all information received now or in the future from or on behalf of the Obligors under or
pursuant to or in connection with the Transaction Documents or the Coface Insurance Policy (other than any information which is in the public domain other than as a result of a breach of this Clause) is confidential information and undertakes to
advise this fact to any recipient of any such information under this Clause.
56
|
19.
|
CHANGES TO THE OBLIGORS
|
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Security Documents without the unanimous
consent of the Lenders.
|
20.
|
ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
|
|
20.1
|
Appointment of the Agent
|
|
|
20.1.1
|
Each other Finance Party appoints the Agent to act as its agent under and in connection with this Agreement and the other Security Documents and the Coface Insurance
Policy.
|
|
|
20.1.2
|
Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with
the Security Documents together with any other incidental rights, powers, authorities and discretions.
|
|
|
20.2.1
|
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
|
|
20.2.2
|
Except where a Security Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.
|
|
|
20.2.3
|
If the Agent receives notice from a Party referring to this Agreement, describing an Event of Default and stating that the circumstance described is an Event of
Default, it shall promptly notify the other Finance Parties.
|
|
|
20.2.4
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or a Mandated Lead
Arranger) under this Agreement it shall promptly notify the other Finance Parties.
|
|
|
20.2.5
|
The Agent’s duties under the Security Documents are solely administrative in nature.
|
|
20.3
|
Role of the Mandated Lead Arrangers
|
None of the Mandated Lead Arrangers has any obligations of any kind to any other Party under or in connection with any Transaction Document or the Coface Insurance Policy.
|
|
20.4.1
|
Nothing in this Agreement constitutes the Agent or any of the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
|
|
20.4.2
|
Neither the Agent nor any of the Mandated Lead Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own
account.
|
|
20.5
|
Business with the Guarantor
|
The Agent and each of the Mandated Lead Arrangers may accept deposits from, lend money to and generally engage in any kind of banking or other business with any Affiliate or Subsidiary of the Guarantor.
57
|
20.6
|
Rights and discretions of the Agent
|
|
|
20.6.1
|
The Agent may rely on:
|
|
|
(a)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
|
|
(b)
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or
within his power to verify.
|
|
|
20.6.2
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
|
|
(a)
|
no Event of Default has occurred (unless it has actual knowledge of an Event of Default arising under Clause 13.2); and
|
|
|
(b)
|
any right, power, authority or discretion vested in any Party or the Lenders has not been exercised.
|
|
|
20.6.3
|
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
|
|
20.6.4
|
The Agent may act in relation to the Security Documents through its personnel and agents.
|
|
|
20.6.5
|
The Agent may disclose to any other Party any information it reasonably believes it has received as the Agent under this Agreement.
|
|
|
20.6.6
|
Notwithstanding any other provision of any Security Document to the contrary, neither the Agent nor any of the Mandated Lead Arrangers is obliged to do or omit to do
anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
|
20.7
|
Lenders’ instructions
|
|
|
20.7.1
|
Unless a contrary indication appears in a Security Document, the Agent shall:
|
|
|
(a)
|
exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Lenders (or, if so instructed by the
Lenders, refrain from exercising any right, power, authority or discretion vested in it as the Agent); and
|
|
|
(b)
|
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Lenders.
|
|
|
20.7.2
|
Unless a contrary indication appears in a Security Document, any instructions given by the Lenders will be binding on all the Finance Parties.
|
|
|
20.7.3
|
The Agent may refrain from acting in accordance with the instructions of the Lenders until it has received such security as it may require for any cost, loss or
liability (together with any associated value added tax) which it may incur in complying with the instructions.
|
|
|
20.7.4
|
In the absence of instructions from the Lenders the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
|
|
20.7.5
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any
Security Document.
|
58
|
20.8
|
Responsibility for documentation
|
The Agent is not responsible for:
|
|
20.8.1
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, a Mandated Lead Arranger, an Obligor or any other person
given in or in connection with any Transaction Document or the Coface Insurance Policy; or
|
|
|
20.8.2
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Coface Insurance Policy or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection with any Transaction Document or the Coface Insurance Policy.
|
|
20.9
|
Exclusion of liability
|
|
|
20.9.1
|
Without limiting Clause 20.9.2, the Agent will not be liable for any action taken by it under or in connection with any Security Document, unless directly caused by its
gross negligence or wilful misconduct.
|
|
|
20.9.2
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or
in respect of any act or omission of any kind by that officer, employee or agent in relation to any Security Document and any officer, employee or agent of the Agent may rely on this Clause.
|
|
|
20.9.3
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Security Documents to be paid by the
Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
|
|
20.9.4
|
Nothing in this Agreement shall oblige the Agent or a Mandated Lead Arranger to carry out any “know your customer” or other checks in relation to any person
on behalf of any Lender and each Lender confirms to the Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by
the Agent or a Mandated Lead Arranger.
|
|
20.10
|
Lenders’ indemnity to the Agent
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero)
indemnify the Agent, within three (3) Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under the Security
Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Security Document).
59
|
20.11
|
Resignation of the Agent
|
|
|
20.11.1
|
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
|
|
20.11.2
|
Alternatively the Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Lenders (after consultation with the Borrower) may
appoint a successor Agent.
|
|
|
20.11.3
|
If the Lenders have not appointed a successor Agent in accordance with Clause 20.11.2 within thirty (30) days after notice of resignation was given, the Agent
(after consultation with the Borrower) may appoint a successor Agent.
|
|
|
20.11.4
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as Agent under the Security Documents.
|
|
|
20.11.5
|
The Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
|
|
20.11.6
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Security Documents but shall remain entitled
to the benefit of this Clause 20. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
|
|
20.11.7
|
After consultation with Coface, the Lenders may, by notice to the Agent, require it to resign in accordance with Clause 20.11.2. In this event, the Agent shall resign
in accordance with Clause 20.11.2.
|
|
|
20.12.1
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other
of its divisions or departments.
|
|
|
20.12.2
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be
deemed to have notice of it.
|
|
20.13
|
Relationship with the Lenders
|
The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five (5) Business Days’ prior
notice from that Lender to the contrary in accordance with the terms of this Agreement.
|
20.14
|
Credit appraisal by the Lenders
|
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Security Document, each Lender confirms to the Agent and each of the Mandated
Lead Arrangers that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Security Document including but not limited to:
60
|
|
20.14.1
|
the financial condition, status and nature of the Guarantor and each Subsidiary of the Guarantor;
|
|
|
20.14.2
|
the legality, validity, effectiveness, adequacy or enforceability of any Security Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Security Document;
|
|
|
20.14.3
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Security
Document, the transactions contemplated by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document; and
|
|
|
20.14.4
|
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Security Document,
the transactions contemplated by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document.
|
|
20.15
|
Deduction from amounts payable by the Agent
|
If any Party owes an amount to the Agent under the Security Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the
Agent would otherwise be obliged to make under the Security Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Security Documents that Party shall be regarded as having received any amount
so deducted.
|
21.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
No provision of this Agreement will:
|
|
21.1.1
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
|
21.1.2
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
|
|
21.1.3
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of tax.
|
|
22.
|
SHARING AMONG THE FINANCE PARTIES
|
|
22.1
|
Payments to Finance Parties
|
If a Finance Party (a
“Recovering Finance Party”
) receives or recovers any amount from an Obligor other than in accordance with Clause 23 and applies that amount to a payment due under
the Security Documents then:
|
|
22.1.1
|
the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent;
|
|
|
22.1.2
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been
received or made by the Agent and distributed in accordance with Clause 17 and Clause 23), without taking account of any tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
61
|
|
22.1.3
|
the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the
“Sharing Payment”
)
equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 17 and Clause 23.
|
|
22.2
|
Redistribution of payments
|
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with Clause 17 and Clause 23.
|
22.3
|
Recovering Finance Party’s rights
|
|
|
22.3.1
|
On a distribution by the Agent under Clause 22.2, the Recovering Finance Party will, if possible under the relevant applicable laws, be subrogated to the rights of the
Finance Parties which have shared in the redistribution.
|
|
|
22.3.2
|
If and to the extent that the Recovering Finance Party is not able to rely on its rights under Clause 22.3.1, the relevant Obligor shall be liable to the Recovering
Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
|
|
22.4
|
Reversal of redistribution
|
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:
|
|
22.4.1
|
each Lender which has received a share of the relevant Sharing Payment pursuant to Clause 22.4 shall, upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which
that Recovering Finance Party is required to pay); and
|
|
|
22.4.2
|
that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing
Finance Party for the amount so reimbursed.
|
|
|
22.5.1
|
This Clause 22 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable
claim against the relevant Obligor.
|
|
|
22.5.2
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of
taking legal or arbitration proceedings, if:
|
|
|
(a)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
|
|
(b)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received
notice and did not take separate legal or arbitration proceedings.
|
62
|
23.1
|
Payments to the Agent
|
|
|
23.1.1
|
On each date on which an Obligor or a Lender is required to make a payment under a Security Document, that Obligor or Lender shall make the same available to the Agent
(unless a contrary indication appears in a Security Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of
payment.
|
|
|
23.1.2
|
Payment shall be made to such account in a principal financial centre in a Participating Member State or London (or, in the case of any other currency, in the principal
financial centre of the country of that currency) with such bank as the Agent specifies.
|
|
23.2
|
Distributions by the Agent
|
Each payment received by the Agent under the Security Documents for another Party shall, subject to Clause 23.3, Clause 23.4 and Clause
20.15 be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five (5) Business Days’ notice with a bank in a principal financial centre in a Participating Member State or London (or, in the case of any other currency, in the principal financial centre of the
country of that currency).
|
23.3
|
Distributions to an Obligor
|
The Agent may (with the consent of the Obligor or in accordance with Clause 13.7 apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Security Documents or in or towards purchase of any amount of any currency to be so applied.
|
|
23.4.1
|
Where a sum is to be paid to the Agent under the Security Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or
perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
|
|
23.4.2
|
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or
the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect
its cost of funds.
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23.5
|
No set-off by Obligors
|
All payments to be made by an Obligor under the Security Documents shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
63
|
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23.6.1
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
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23.6.2
|
During any extension of the due date for payment of any principal or unpaid sum under this Agreement interest is payable on the principal or unpaid sum at the rate
payable on the original due date.
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|
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23.7.1
|
Subject to Clauses 23.7.2 and 23.7.3 Dollars is the currency of account and payment for any sum from an Obligor under any Security Document.
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|
23.7.2
|
Each payment in respect of costs, expenses or taxes shall be made in the currency in which the costs, expenses or taxes are incurred.
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|
23.7.3
|
Any amount expressed to be payable in a currency other than Dollars shall be paid in that other currency.
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|
|
23.8.1
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency
of that country, then:
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|
|
(a)
|
any reference in the Security Documents to, and any obligations arising under the Security Documents in, the currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated by the Agent (after consultation with the Lenders and the Borrower); and
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|
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(b)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
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|
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23.8.2
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Lenders and the
Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the relevant interbank market and otherwise to reflect the change in currency.
|
This
Agreement and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
25.1
|
Jurisdiction of English courts
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
25.1.1
|
arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement); or
|
64
|
|
25.1.2
|
relating to any non-contractual obligations arising from or in connection with this Agreement,
|
(a
“Dispute”
). Each Party to this Agreement agrees that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Party will argue to the contrary.
This Clause 25.1 is for the benefit of the
Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any Finance Party may take concurrent proceedings in any number
of jurisdictions.
Without prejudice to any other mode of service allowed under any relevant law, the Borrower:
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|
25.2.1
|
irrevocably appoints Clifford Chance Secretaries Limited as its agent for service of process in relation to any proceedings before the English courts in connection with
any Finance Document; and
|
|
|
25.2.2
|
agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned.
|
The
appendices form an integral part of this Agreement.
Any notices and
demands and, subject to Clause 25.2.1, service of process relating to this Agreement or its performance, shall be in writing and shall be validly addressed, delivered or served at the respective addresses below:
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|
|
|
|
For the Borrower:
|
|
c/o 7665 Corporate Center Drive
Miami
Florida 33126
United States of America
Facsimile: +1 305 436 4140 (the Chief Financial Officer)
and
+1 305 436 4117 (Legal Department)
Attention: the Chief Financial Officer and the Legal Department
|
|
|
|
|
|
|
with a copy to:
|
|
|
|
|
|
|
the Investors
c/o Apollo
Management, LP
9 West 57
th
Street, 43
rd
Floor
New
York, NY 10019
United States of America
marked for the attention of Mr Steven Martinez
Facsimile: +1 212 515 3288
|
65
|
|
|
|
|
For the Agent:
|
|
BNP Paribas
ECEP/Export
Finance
ACI: CHDESA1
37 Place du
Marché Saint-Honoré
75031 Paris Cedex 01
France
Facsimile: +33 01 4316 8184/+33 01 4298 0029
Attention: Mrs Dominique Laplasse (Team Head)/
Mr Jean Philippe Poirier
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|
|
|
|
For the Lenders:
|
|
c/o the Agent
|
or to such other address or
numbers as each party may notify to the other. Notices shall be effective upon receipt as set forth above provided that if the copy of any notice is not received by the Investors it shall not affect the effectiveness of the notice. Any
communications by facsimile shall be confirmed by registered mail or recognized international courier service, but the communication shall be deemed received on the date of the facsimile transmission (or if the day is not a business day in the place
where the facsimile is received, on the next business day in that place).
Provided that for so long as no notice of
acceleration has been issued pursuant to Clause 13.4, notices addressed to the Agent shall be deemed to have been addressed to the Lenders.
|
28.1
|
If any term of this Agreement becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired.
|
|
28.2
|
No failure or delay on the part of the Lenders in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise thereof preclude any other or further exercise thereof by the Lenders or the exercise by the Lenders of any other right, power or privilege. The rights and remedies of the Lenders herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
|
|
28.3
|
This Agreement shall not be capable of being modified otherwise than by an express modification in writing signed by the Borrower and the Lenders.
|
This
Agreement shall come into force on the date of its signature but the rights and obligations of the Borrower hereunder may be terminated by written notice from the Borrower to the Agent, such notice to be received not later than sixty (60) days
prior to the Intended Delivery Date. Following service of such notice (which shall be irrevocable), the Borrower shall have no further right to draw down the Loan and the Borrower shall have no further obligations under this Agreement save in
respect of fees, costs and expenses incurred under or in respect of this Agreement on or before the date on which the notice becomes effective or as a result of the service of the notice.
Service by the Borrower of the written notice in accordance with the preceding paragraph shall constitute a condition subsequent to this
Agreement.
66
The
Group-Wide Lenders shall establish the Steering Committee.
Notwithstanding anything to the contrary expressed or implied herein, no member of the Steering Committee shall:
|
|
30.2.1
|
be bound to enquire as to the occurrence or otherwise of any Event of Default or as to the performance by the Borrower of its obligations under this Agreement;
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|
|
30.2.2
|
be bound to disclose to any other person any information relating to the Borrower if such disclosure would or might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any person;
|
|
|
30.2.3
|
have any responsibility to the Lenders or each other for:
|
|
|
(a)
|
the financial position, creditworthiness, affairs or prospects of the Borrower and the other Obligors;
|
|
|
(b)
|
the performance or non-performance howsoever by the Borrower of any of its obligations hereunder;
|
|
|
(c)
|
the due execution, effectiveness, genuineness, validity or enforceability of this Agreement or any document relating hereto or any filing or recording thereof or the
taking of any other action whatsoever and howsoever in connection therewith or the collectability of any sum due hereunder;
|
|
|
(d)
|
be under any liability whatsoever for any consequence of relying on:
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|
|
(i)
|
any written communication or document believed by it to be genuine or correct and to have been communicated or signed by the person by whom it is purported to have been
communicated or signed; or
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|
|
(ii)
|
the advice or opinions of any professional advisers selected by it or the Steering Committee;
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|
|
(e)
|
be under any duty to account to any Lender for any sum received by it for its own account or the profit element of any such sum; or
|
|
|
(f)
|
be under any obligation other than those for which express provision is made herein.
|
Each member of
the Steering Committee may:
|
|
30.3.1
|
carry out its duties through such officers, directors, employees, consultants or independent agents as it may in its unfettered discretion think fit;
|
|
|
30.3.2
|
assume that no Event of Default has occurred and that the Borrower is not in breach of its obligations under this Agreement unless the member has actual knowledge or
actual notice to the contrary;
|
67
|
|
30.3.3
|
with the agreement of the Steering Committee, engage any internal or external lawyers, accountants, surveyors or other experts whose advice or services may to it seem
necessary, expedient or desirable and rely upon any advice so obtained provided that the law firm appointed as principal advisers to the Steering Committee shall be approved by the Majority Group-Wide Lenders;
|
|
|
30.3.4
|
rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Guarantor upon a certificate signed by or on behalf of the
Guarantor; and
|
|
|
30.3.5
|
rely upon any communication or document believed by it to be genuine.
|
Notwithstanding the establishment of the Steering Committee, it is understood that each of the Lenders has itself been, and will continue
to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrower and the other Obligors and, accordingly, each of the
Lenders warrants to the members of the Steering Committee that it has not relied and will not rely on the Steering Committee:
|
|
30.4.1
|
to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower or any other Obligor in connection with this
Agreement; or
|
|
|
30.4.2
|
to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower or any other Obligor.
|
Subject
to the terms of this Agreement, each member of the Steering Committee shall exercise the same care as it normally exercises in making and administering loans for its own account in performing its duties as a member of the Steering Committee but
assumes no further responsibility in respect of such performance.
No member
of the Steering Committee shall be under any liability as a result of taking or omitting to take any action in relation to the Group Credit Facilities and the Lenders will not assert or seek to assert against any director, officer or employee of
that member any claim they might have against any of them in respect of the matters referred to in this Clause 30.6.
|
30.7
|
No fiduciary relationship
|
The relationship between a member of the Steering Committee on the one part and each Lender on the other is that of agent and principal
only and no member of the Steering Committee shall have a fiduciary relationship with or be, or be deemed to be, a trustee of or for any such party.
Notwithstanding the provisions of Clause 30.7, no member of the Steering Committee shall be regarded as the Agent or exercise any right,
power or discretion expressly delegated to the Agent under this Agreement or the Security Documents.
68
Unless
expressly authorised in writing by the Group-Wide Lenders and then on such terms and conditions as the Group-Wide Lenders may require, the Steering Committee shall not negotiate the terms of or enter into any agreement on behalf of the Group-Wide
Lenders or any of them.
This Clause 30 may be relied upon by any member of the Steering Committee notwithstanding the second paragraph of
Clause 1.2.
69
Made in five (5) originals on the date before written.
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|
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|
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F3 TWO, LTD.
|
|
|
|
BNP PARIBAS
(as
Lender and as Agent)
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by:
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by:
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____________________
|
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____________________
|
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its:
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its:
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CALYON
|
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HSBC FRANCE
|
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by:
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by:
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____________________
|
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|
____________________
|
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|
its:
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|
its:
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|
SOCIETE GENERALE
|
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by:
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____________________
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its:
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70
APPENDIX I
DOCUMENTS TO BE PRODUCED BY THE BUILDER TO BNP PARIBAS AS AGENT
Certified Copy of the
commercial invoice, duly executed by the Builder in favour of the Borrower and countersigned by the Borrower.
Certified Copy of the Protocol
of Delivery and Acceptance, duly executed by the Builder and the Borrower.
Certified Copy of the declaration of warranty, duly executed by
the Builder confirming that the Vessel is delivered to the Borrower free and clear of all encumbrances whatsoever.
Certified Copy of the
commercial invoice(s) corresponding to the Change Orders or any other similar document issued by the Builder stating the Change Order Amount, duly executed by the Builder in favour of the Borrower and countersigned by the Borrower.
Acknowledgement of the notice of assignment of the Borrower’s rights under the post-delivery warranty given by the Builder under the Building
Contract pursuant to the Assignment of Warranty Rights.
Certified Copy of the power of attorney pursuant to which the authorised signatory of
the Builder signed the documents referred to in this Appendix I and a specimen of his signature.
71
APPENDIX II
THE ORIGINAL LENDERS AND THE MANDATED LEAD ARRANGERS
|
|
|
|
|
|
|
Name
|
|
Registered Address
|
|
Registered Number with the
Registry of Trade and
Companies
|
|
|
|
|
|
BNP PARIBAS
|
|
16 boulevard des Italiens,
75009 Paris, France
|
|
662 042 449 (RCS Paris)
|
|
|
|
|
|
CREDIT AGRICOLE
CORPORATE &
INVESTMENT BANK
(formerly known as
Calyon)
|
|
9 quai du Président Paul
Doumer, 92920 Paris La
Défense Cedex,
France
|
|
304 187 701 (RCS Nanterre)
|
|
|
|
|
|
HSBC FRANCE
|
|
103 avenue des Champs
Elysées, 75419 Paris, Cedex
08,
France
|
|
775 670 284 (RCS Paris)
|
|
|
|
|
|
SOCIETE GENERALE
|
|
29 boulevard Haussmann,
75009 Paris, France
|
|
552 120 222 (RCS Paris)
|
|
|
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|
|
each a French société anonyme
|
|
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72
APPENDIX III
FORM OF TRANSFER CERTIFICATE
To:
[ ] as Agent
From: [
The Existing Lender
] (the
“Existing
Lender”
) and [
The New Lender
] (the
“New Lender”
)
Dated:
Norwegian Epic, Ltd.
(
formerly known as F3 Two, Ltd.
)
—Equivalent Amount in Dollars of EUR662,905,320 Loan Agreement dated
22 September 2006 (as amended and/or restated) (the “Agreement”)
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different
meaning in this Transfer Certificate.
|
|
2.
|
We refer to Clause 18.5:
|
|
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule in accordance with Clause 18.5.
|
|
|
(b)
|
The proposed Transfer Date is [ ].
|
|
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 27 are set out in the Schedule.
|
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in Clause 18.4.3.
|
|
4.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of
this Transfer Certificate.
|
|
5.
|
This Transfer Certificate is governed by English law.
|
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Facility Office address, fax number and attention details for notices and account details for payments
]
|
|
|
|
|
[Existing Lender]
|
|
[New Lender]
|
|
|
|
|
By:
|
|
By:
|
This Transfer Certificate is accepted by the Agent
and the Transfer Date is confirmed as [ ].
[Agent]
By:
73
APPENDIX IV
FORM OF DRAWDOWN NOTICE
BNP Paribas
ECEP/Export Finance
ACI: CHDESA1
37 Place du Marché Saint-Honoré
75031 Paris Cedex 01
France
Date 2010
Dear Sirs
Hull No. D33 Drawdown Notice
We refer to the loan agreement for hull no. D33 dated 22 September 2006 as amended and/or restated made between ourselves as borrower, yourselves,
Crédit Agricole Corporate & Investment Bank (formerly known as Calyon), HSBC France and Société Générale as lenders and yourselves as agent (the
“Agreement”
). Terms defined in the
Agreement shall have the same meaning in this Notice.
We hereby give you notice that pursuant to the Agreement and on
[date of proposed drawdown] 2010, we wish to draw down the Loan (in the Equivalent Amount of the sum of [ ] euro
(EUR[ ])
1
) upon the terms and subject to the conditions contained therein.
In accordance with the
provisions of Clause 3.3, we hereby request you to advance the Loan by crediting the proceeds as follows:
To the Builder:
|
(a)
|
the sum of [ ] euro
(EUR[ ]) being the amount of the Contract Price of the Vessel prior to any Change Order remaining due under the Building Contract; and
|
|
(b)
|
the sum of [ ] euro
(EUR[ ]) in respect of the Change Order Amount; and
|
To
the Agent, in reimbursement of the related Coface Premium.
We confirm that at the date hereof the representations and warranties set out in
Clause 9 of the Agreement are true and no Event of Default has occurred and is continuing.
Yours faithfully
for and on behalf of
NORWEGIAN EPIC, LTD.
(formerly known as
F3 TWO, LTD.
)
|
1
|
The total of the amounts in paragraphs (a) and (b) and the amount of the Coface Premium in euro.
|
74
APPENDIX V
APOLLO-RELATED TRANSACTIONS
|
|
1.1
|
At the closing of the transactions contemplated by the Subscription Agreement (the
“Closing”
), the Investors shall pay to the Guarantor
USD1,000,000,000 as payment for newly-issued ordinary shares (
“Ordinary Shares”
) in the capital of the Guarantor, par value USD1.00 per share (the
“Subscribed Ordinary Shares”
). The Subscribed Ordinary Shares shall
represent fifty per cent. (50%) of the issued and outstanding Ordinary Shares of the Guarantor as of the Closing.
|
|
|
1.2
|
On the Jade Transfer Date (i) NCL America Holdings will transfer the Jade Assets to NCL International (or one of NCL International’s existing or newly-formed
subsidiaries), and the Jade Vessel shall be re-flagged in connection with such transfer from the US flag to the Bahamas flag provided that in the event that the transfer of the Jade Assets can be effected in a manner that the parties to the
Subscription Agreement agree is more advantageous from a tax perspective than the manner set forth above, such transfer shall be effected in an alternative manner and (ii) NCL International (or one of its existing or newly-formed subsidiaries)
will assume the Jade Liabilities (such transactions together the
“Jade Transfer”
).
|
|
|
1.3
|
Effective as of the Closing, in consideration of the mutual covenants and agreements contained therein, the Guarantor has released, waived and forever discharged Star,
its Subsidiaries and their respective predecessors, successors, assigns, officers, directors, shareholders, employees and agents and their respective counsel (for the benefit of Star and its Subsidiaries) from any and all actions, causes of actions,
demands, suits, contracts, agreements, Encumbrances, Liabilities, or Losses of any type, based on any fact or circumstance arising prior to the Closing based on Star’s relationship with the Guarantor and its Subsidiaries prior to the Closing
(including any claims relating to actual or alleged breaches of fiduciary or other duties by Star’s directors, officers or shareholders), whether based on contract or any applicable law (including tort, statute, local ordinance, regulation or
any comparable law) in any jurisdiction.
|
|
|
1.4
|
Star, the Guarantor and the Investors have stated their mutual intention that, following the Closing, Star and the Guarantor continue their current policies and
practices of close collaboration in support of their mutual efforts to develop their respective cruise line businesses, including providing assistance to each other in mutually-beneficial strategic initiatives, consultation, co-ordination,
collaboration in shipbuilding and sharing of ship design and providing or assisting in obtaining any necessary consents and approvals relating to such initiatives, shipbuilding or ship design provided that in no event shall Star or the Guarantor be
obligated to engage in any such efforts if such efforts could reasonably be expected to have an adverse effect on the operation or prospects of such party’s respective cruise line business.
|
|
|
1.5
|
Star has indemnification obligations running in favour of the Investors. In the event that the Investors suffer any indemnifiable Losses in cash, Star may elect in its
sole discretion to have all or a portion of the indemnity obligation of Star deemed satisfied by having the Guarantor issue to the Investors additional Ordinary Shares.
|
|
|
1.6
|
If the transactions contemplated by the Subscription Agreement upon the Closing (as described in clause 1.1 of this Appendix) are consummated, at the
Closing, the Guarantor shall pay, by wire transfer of immediately available funds, to each Person who is the payee of any outstanding Guarantor Transaction Expenses as of the
|
75
|
|
Closing Date, the amount owed to such Person. For the avoidance of doubt, in the event that the Closing Date transaction fee payable to either (i) an Affiliate of the Investors or
(ii) Star or an Affiliate thereof exceeds, in either case, an amount which is equal to half of the amount paid to Citigroup Global Markets, Inc. or an Affiliate thereof for its mergers and acquisitions advisory fee, such excess amount shall be
paid, with respect to (i), by Star, or with respect to (ii), by the Investors. If the transactions contemplated by the Subscription Agreement upon the Closing (as described in clause 1.1 of this Appendix) are not consummated, all costs and expenses
incurred in connection with the Subscription Agreement and the transactions contemplated thereby shall be paid by the party incurring such costs and expenses.
|
|
2
|
Shareholders’ Agreement
|
For so long as the ratio of the number of the Equity Securities owned by the Star Group on a fully diluted basis divided by the number of the Equity Securities owned by the Investor Group on a fully
diluted basis is at least 0.6, the Guarantor may not take any of the actions set forth in schedule II of the Shareholders’ Agreement without the prior written approval of Star. For the purpose of this clause
“on a fully diluted
basis”
means taking into account any shares issued or issuable under warrants, options and convertible instruments (or other equity equivalents).
|
3
|
Reimbursement Agreement
|
|
|
3.1
|
NCL America Holdings Undertakings
|
Star and Investor I have agreed (the
“NCLA Undertakings”
) to cause the Guarantor to conduct the NCLA Business in the usual and ordinary course of business after the Closing Date. In
connection therewith, Star shall periodically reimburse the Guarantor for any NCLA Cash Losses up to the amount of the Cash Losses Cap.
|
|
3.2
|
Star Termination Election
|
At any time after the Closing Date, Star may give notice (the
“Star Termination Election”
) to the Guarantor and
Investor I that it is terminating the NCLA Undertakings. Following receipt by the Guarantor of the Star Termination Election, the parties to the Reimbursement Agreement shall then within thirty (30) days thereafter either (i) enter
into the NCLA Continuation Agreement (as defined in clause 3.4 of this Appendix) or (ii) make the NCLA Wind-up Determination (as defined in clause 3.5 of this Appendix).
|
|
3.3
|
Guarantor Termination Election
|
In the event the Star Termination Election has not been delivered prior to 1 December 2008, then on the earlier of (i) such date and (ii) the date on which the aggregate amount of NCLA Cash
Losses actually accrued equals or exceeds USD37,500,000, the Guarantor may give notice to Star (the
“Guarantor Termination Election”
) that it is terminating the NCLA Undertakings. Following receipt by Star of the Guarantor
Termination Election (a) the parties to the Reimbursement Agreement shall undertake the Shut Down Procedure (b) the America Assets shall be transferred by NCL America Holdings to NCL International (or one of its existing or newly-formed
subsidiaries), which transfer shall be accomplished through liquidations to the extent necessary and NCL International (or one of its existing or newly-formed subsidiaries) shall assume any liabilities associated with the America Assets, and the
Pride of America Vessel shall be re-flagged in connection with such transfer from the US flag
76
to the Bahamas flag (such transactions together the
“America Transfer”
) (c) the Guarantor shall pay to Star an amount equal to USD460,000,000 less any America Accumulated
Book Depreciation and less any Allocable America Indebtedness (d) the Guarantor shall prepay and/or cancel the relevant percentage of the term loan and revolving credit facilities outstanding under the credit facilities related to the Aloha
Assets (and the lenders under such facilities shall release all of their liens on the Aloha Assets) and cause the transfer to Star (or one of its subsidiaries) of all of NCL America Holdings’ right, title and interest in the Aloha Assets free
and clear of any Encumbrances through liquidations that qualify as complete liquidations under section 331 of the Code of NCL America Holdings, Pride of Aloha, Inc., a Delaware corporation, and each of NCL America Holdings’ other subsidiaries,
to the extent necessary and (e) Star shall reimburse the Guarantor for any and all Shut Down Costs up to USD35,000,000 (each such payment, distribution or transaction, the
“Wind Up Transactions”
). Following any decision to shut
down the NCLA Business, any decision to sell or otherwise dispose of any of the assets of the NCLA Business (other than the Pride of America Vessel, the Pride of Aloha Vessel and their respective related assets) as part of the Shut Down Procedure
shall be determined solely by Star. The net proceeds of any such sale or disposition(s) shall be deducted from and shall reduce the Shut Down Costs by such amount of net proceeds.
|
|
3.4
|
NCL America Holdings Continuation Agreement
|
In the event that Star has provided the Guarantor and Investor I with the Star Termination Election, then within thirty (30) days thereafter, the Guarantor and Star will mutually agree in
writing that the Guarantor shall continue to operate and manage the NCLA Business (the
“NCLA Continuation Agreement”
), in which case (i) Star’s obligations to reimburse the Guarantor for the NCLA Cash Losses shall
terminate, and Star shall not be obligated to pay for any Shut Down Costs and (ii) the Guarantor shall pay to Star an amount equal to USD800,000,000, less the Aloha Accumulated Book Depreciation, less the America Accumulated Book Depreciation,
less the Allocable Aloha Indebtedness and less the Allocable America Indebtedness (such amounts together the
“Payment”
) provided that the Payment shall be funded in part by an incremental equity contribution to the Guarantor by each
of Star and Investor I in the amount of USD170,000,000, less one-half of the Aloha Accumulated Book Depreciation and less one-half of the Allocable Aloha Indebtedness.
Subject to the proviso in the immediately preceding paragraph, the Guarantor shall use reasonable best efforts to fund any payments to Star pursuant to the NCLA Continuation Agreement, NCLA Wind Up
Transactions or the Guarantor Termination Election by either the use of funds generated internally by the Guarantor or generated from the incurrence of additional Indebtedness from existing or new debt facilities. In the event that the Guarantor is
unable to fund payments in such a manner, Star and Investor I acknowledge and agree that such funds shall be generated by the net proceeds of a primary offering of additional Ordinary Shares to the existing shareholders of the Guarantor at the
Subscription Price.
|
|
3.5
|
NCL America Holdings Wind-up Determination
|
In the event that the Guarantor and Star have not entered into the NCLA Continuation Agreement by the end of such thirty (30) day period or the Guarantor provides to Star notice prior to the
expiration of such thirty (30) day period that the Guarantor has elected to shut down the NCLA Business (either such circumstance, the
“NCLA Wind-up Determination”
) the parties shall consummate the Wind Up Transactions.
77
If none of the Guarantor Termination Election, the NCLA Continuation Agreement or the NCLA
Wind-up Determination has been made by 31 December 2008, the provisions of the Reimbursement Agreement shall apply as if the Guarantor and Star have entered into the NCLA Continuation Agreement.
As a result of
the transactions contemplated by the Subscription Agreement (as described in clause 1.1 of this Appendix), a change of control is triggered under the Indenture, dated 15 July 2004, between the Guarantor and JPMorgan Chase Bank, N.A., as
indenture trustee, with respect to USD250,000,000 10 5/8% Senior Notes due 2014. At Closing, pursuant to and as required by the terms of the Indenture, the Guarantor will proceed with a repurchase offer for the outstanding bonds at a purchase
price in cash equal to one hundred and one per cent. (101%) of the principal amount plus accrued and unpaid interest. Apollo holds USD29,000,000 in principal amount of the said 10 5/8% Senior Notes due 2014.
Defined Terms
Capitalized terms defined
in this Agreement and not otherwise defined in this Appendix shall have the meanings specified for such terms in this Agreement. As used in this Appendix, the following terms shall have the meanings specified below:
“additional Ordinary Shares”
means Ordinary Shares issued by the Guarantor following the issuance of the Subscribed Ordinary Shares;
“Affiliate”
means, with respect to any Person (i) who is an individual, a spouse, parent, sibling or lineal descendant
of such Person (ii) that is an entity, an officer, manager, director, shareholder, member, general partner, limited partner or an Affiliate of such Person and (iii) any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with, another Person. For purposes of this definition, the terms “control”, “controlling”, “controlled by” and “under common control
with”, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise;
“Allocable Aloha Indebtedness”
means USD0;
“Allocable America Indebtedness”
means USD251,000,000;
“Allocable Jade
Indebtedness”
means EUR383,000,000;
“Allocable NCLA Indebtedness”
means USD251,000,000;
“Aloha Accumulated Book Depreciation”
means any accumulated book depreciation calculated in accordance with GAAP with respect to the
Pride of Aloha Vessel from 1 April 2007 to the NCLA Valuation Date, as set forth in schedule 1 to this Appendix;
“Aloha
Assets”
means the following assets relating wholly and directly to the Pride of Aloha Vessel, in each case to the extent transferable or assignable: (i) the Pride of Aloha Vessel (ii) all permits issued by any governmental
authority to NCL America Holdings and related to the Pride of Aloha Vessel and (iii) all of the Pride of Aloha Vessel’s appliances, equipment, engines, machinery, boats, tackle, outfit, bunkers, oils and fuels, spare parts, consumable
provisions and stores, appurtenances and belongings, whether on board or ashore;
78
“Amended and Restated Incorporation Documents”
means the memorandum of increase of
authorised share capital and the amended and restated bye-laws of the Guarantor and the Guarantor’s existing memorandum of association;
“America Accumulated Book Depreciation”
means any accumulated book depreciation calculated in accordance with GAAP with respect to the
Pride of America Vessel from 1 April 2007 to the NCLA Valuation Date, as set forth in schedule 1 to this Appendix;
“America
Assets”
means: (i) the Pride of America Vessel (ii) all permits issued by any governmental authority to NCL America Holdings or any of its subsidiaries and related to the Pride of America Vessel, in each case to the extent
transferable or assignable (iii) all monies received with respect to payments for cruises on the Pride of America Vessel which will take place after the closing date of the America Transfer (iv) all supplies and inventory on the Pride of
America Vessel for cruises on the Pride of America Vessel which will take place after the closing date of the America Transfer (v) all accounts and notes receivable of NCL America Holdings or any of its subsidiaries related to cruises on the
Pride of America Vessel which will take place after the closing date of the America Transfer (vi) all insurance and indemnity claims relating to the Pride of America Vessel or America Liabilities made by or on behalf of Star, the Guarantor or
NCL America Holdings (or any of their respective subsidiaries) and received after the closing date of the America Transfer and (vii) all other assets, properties, rights and claims used, held for use or intended to be used in connection with
the operation or conduct of the Pride of America Vessel after the closing date of the America Transfer;
“America
Liabilities”
means the Allocable America Indebtedness and any other liability relating to the America Assets;
“Applicable
Law”
means with respect to any Person, all provisions of common or statutory laws, statutes, ordinances, rules, regulations or Orders applicable to such Person. For the avoidance of doubt, Applicable Law shall include the Listing Rules;
“Cash Losses Cap”
means USD50,000,000;
“Closing Date”
shall mean the date on which the closing of the investment in the Guarantor by the Investors occurs and which is expected to be on or about fourteen (14) days after
the date of the First Supplemental Deed;
“Code”
means the Internal Revenue Code of 1986 of the United States of America, as
amended;
“Encumbrances”
means any lien, encumbrance, hypothecation, charge, mortgage, equity, trust, equitable interest,
claim, preference, right of possession, right of seizure, lease, tenancy, license, covenant, interference, proxy, right of first refusal, option or right of first option, preemptive right, community property interest, legend, defect, impediment,
exception, limitation, impairment, imperfection of title or restriction of any nature (including any restrictions on the voting of any Security, any restriction on the Transfer of any Security or other asset, any restriction on the receipt of any
income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset);
“Equity Securities”
means (i) the Ordinary Shares and any other equity securities of the Guarantor and (ii) any securities issued or issuable directly or indirectly with respect
to the securities referred to in clause (i) above by way of conversion, exercise or exchange, bonus share issue, share dividend, share sub-division, or share split or in connection with a combination of shares, recapitalization,
reclassification, amalgamation, merger, consolidation, reorganization or other similar event;
“Existing Star Controlling
Shareholders”
means Golden Hope Limited, as trustee of the Golden Hope Unit Trust, Resorts World Bhd, Genting Overseas Holdings Limited, Tan Sri Lim Kok Thay, Puan Sri Lee Kim Hua, Joondalup Limited, Goldsfine Investments Ltd., and each
other controlled Affiliate of Tan Sri Lim Kok Thay;
79
“Governmental Authority”
means any national, European Union, federal, provincial, state,
county, city, local, foreign or international governmental, administrative or regulatory authority, commission, committee, agency or body (including any court, tribunal or arbitral body) and specifically including The Stock Exchange of Hong Kong
Limited;
“Guarantor Transaction Expenses”
means (i) the third person fees and expenses, reasonably incurred by the
Investors, Star, the Guarantor and its Subsidiaries in connection with the drafting, negotiation, execution, and delivery of the Subscription Agreement, the Shareholders’ Agreement and the Reimbursement Agreement, the amended and restated
incorporation documents of the Guarantor, the Voting Agreement and all other documents, agreements and instruments executed and delivered in connection therewith, in each case, as amended, modified or supplemented from time to time, and other
documents relating to the investment process, including (a) all of the fees and expenses of the Guarantor’s and Star’s accountants, lawyers, and other advisors, including Citigroup Global Markets, Inc., Cleary Gottlieb
Steen & Hamilton LLP, Cox Hallett Wilkinson, Clifford Chance and Access Capital Limited (b) all of the fees and expenses (including due diligence fees and expenses) of the Investors’ accountants, lawyers, and other advisors,
including Aon Corporation, O’Melveny & Myers LLP, Conyers Dill & Pearman and Burke & Parsons (c) the amount of all filing fees required to be paid pursuant to any competition and antitrust laws and any other
regulatory filings required and (d) the mergers and acquisitions advisory fee payable to Citigroup Global Markets, Inc. or an Affiliate thereof and (ii) the Closing Date transaction fees payable to (a) an Affiliate of the Investors
and (b) Star or an Affiliate thereof provided that the Closing Date transaction fee payable to each such Person in paragraph (ii) of this definition shall not exceed an amount which is equal to half of the amount paid to Citigroup Global
Markets, Inc. or an Affiliate thereof for its mergers and acquisitions advisory fee;
“Indebtedness”
means, with respect to
any Person, without duplication (i) all obligations for borrowed money, including all obligations evidenced by notices or similar instruments (ii) all obligations issued or assumed as the deferred purchase price of property or services
(other than current trade liabilities incurred in the ordinary course and payable in accordance with customary practice) (iii) all capital lease obligations under GAAP (iv) all obligations secured by an Encumbrance (v) all obligations
to pay a specified purchase price for goods and services, whether or not delivered or accepted (vi) all obligations in respect of swap or hedge agreements or similar agreements (vii) all negative cash balances and refunds payable
(viii) the principal component of all obligations, contingent or otherwise, in respect of letters of credit and bankers’ acceptances (ix) all guarantees of Indebtedness described in clauses (i) to (viii) above and
(x) all change in control payments payable in connection with the consummation of the transactions contemplated by the Transaction Documents;
“Investor Group”
means the Investors together with their Permitted Transferees who hold Equity Securities;
“Jade Assets”
means: (i) the Jade Vessel (ii) all permits issued by any governmental authority to NCL America Holdings or any of its subsidiaries and related to the Jade Vessel,
in each case to the extent transferable or assignable (iii) all monies received with respect to payments for cruises on the Jade Vessel which will take place after the closing date of the Jade Transfer (iv) all supplies and inventory on
the Jade Vessel for cruises on the Jade Vessel which will take place after the closing date of the Jade Transfer (v) all accounts and notes receivable of NCL America Holdings or any of its subsidiaries related to cruises on the Jade Vessel
which will take place after the closing date of the Jade Transfer (vi) all insurance and indemnity claims relating to the Jade Vessel or Jade Liabilities made by or on behalf of Star, the Guarantor or NCL America Holdings (or any of their
respective subsidiaries) and received after the closing date of the Jade Transfer and (vii) all other assets, properties, rights and claims used, held for use or intended to be used in connection with the operation or conduct of the Jade Vessel
after the closing date of the Jade Transfer;
80
“Jade Liabilities”
means the Allocable Jade Indebtedness and any other liability relating
to the Jade Assets;
“Jade Transfer Date”
means 9 February 2008, or such other date mutually agreed in writing by the
parties to the Subscription Agreement;
“Jade Vessel”
means the 2006 built United States documented passenger vessel
“PRIDE OF HAWAII”, official number 1160677, IMO number 9304057, and all appurtenances thereto whether on board or ashore;
“Liabilities”
means any and all direct or indirect Indebtedness, Losses, claims or responsibilities, whether known or unknown, accrued
or fixed, absolute or contingent, matured or unmatured, secured or unsecured or determined or determinable, whether or not of a kind required by GAAP to be set forth on a financial statement, including (but not limited to) those arising under any
Applicable Law and those arising under any contract or otherwise;
“Listing Rules”
means The Rules Governing the Listing of
Securities on The Stock Exchange of Hong Kong Limited;
“Losses”
means any and all direct or indirect payments, obligations,
recoveries, deficiencies, fines, penalties, interest, assessments, losses, damages (including damages resulting in diminution in value, lost income and profits and interruptions in the business of the Guarantor or any of its Subsidiaries),
liabilities, costs, expenses, to the extent actually incurred, including (i) attorneys’ fees and expenses relating to such Loss and/or necessary to enforce rights to indemnification in connection with the Subscription Agreement and
(ii) consultants’ and experts’ fees and other costs of defence or investigation, and interest on any amount payable to a third party as a result of the foregoing (whether accrued, absolute, contingent, known, or otherwise, but
excluding punitive, exemplary, special and consequential damages (other than as expressly included in this definition));
“NCLA
Business”
means the operations and business conducted by NCL America Holdings and its subsidiaries, which include the operation of the Pride of America Vessel and the Pride of Aloha Vessel and, until the Jade Transfer has been completed,
the Jade Vessel;
“NCLA Capital Expenditures”
means, for any period, the aggregate amount of any capital expenditures made by
NCL America Holdings and any of its subsidiaries in such period with respect to the NCLA Business (including any capital expenditures made in relation to the Jade Vessel until the Jade Transfer has been completed);
“NCLA Cash Losses”
means the amount, if negative, of the sum of (i) NCLA EBITDA less (ii) NCLA Capital Expenditures less
(iii) interest paid or accrued on the Allocable NCLA Indebtedness at a blended rate, in each case in respect of the period beginning on the Closing Date and ending on the NCLA Valuation Date and in each case as reflected on the financial
statements of NCL America Holdings or the accounting books and records of NCL America Holdings;
“NCLA EBITDA”
means, for any
period, the sum of (i) net revenues less (ii) ship operating expenses and selling, general and administrative expenses as allocated in a manner consistent with past practice as included in management reports, in each case as determined in
accordance with GAAP and as reflected in the financial statements of NCL America Holdings or the accounting books and records of NCL America Holdings. For the avoidance of doubt (a) any Shared Overhead Expenses which are incurred by the
Guarantor and its subsidiaries in any such period shall be included (without duplication) in the calculation of NCLA EBITDA for such period and (b) any Shut Down Costs, Post-Termination Expenses or expenses in connection with the early
redeployment of the Pride of America Vessel in the Guarantor’s fleet which are incurred in any such period shall not be included in the calculation of NCLA EBITDA for such period;
81
“NCLA Valuation Date”
means the date that is ninety (90) days after the date on which
notice of the Star Termination Election or the Guarantor Termination Election is delivered;
“Order”
means all judgments,
injunctions, orders and decrees of all Governmental Authorities in any legal, administrative or arbitration action, suit, complaint, charge, hearing, mediation, inquiry, investigation or proceeding in which the Person in question is a party or by
which any of its properties or assets are bound;
“Permitted Transfer”
means:
|
(i)
|
with respect to the Investors, any Transfer by an Investor to an Affiliate of the Investor (including (a) the partners, members and stockholders of the Investor,
and, if such Affiliate is an entity, the partners, members and stockholders of such Affiliate (b) any limited partner which has directly or indirectly invested, or otherwise has ownership interests, in Apollo Investment Fund VI, LP or one of
its Affiliated investment funds or (c) prior to the first anniversary of the Closing Date, of up to forty per cent. (40%) of the Equity Securities held by the Investor as at the Closing Date in the aggregate to any funds, financial
institutions or individuals acting as a co-investor in the Guarantor with the Investor; and
|
|
(ii)
|
with respect to Star, any Transfer by Star to (a) any wholly-owned Subsidiary of Star or (b) any Existing Star Controlling Shareholder;
|
“Permitted Transferees”
means any Person to whom a Permitted Transfer is made or is to be made;
“Person”
means any legal person, including any individual, corporation, investment fund, partnership, limited partnership, limited
liability company, joint venture, joint stock company, association, trust, unincorporated entity or Governmental Authority or other entity;
“Post-Termination Expenses”
means all of the (i) costs and expenses with respect to the operations of the NCLA Business that are
incurred, consistent with past practice by the Guarantor and its subsidiaries, after the NCLA Valuation Date through 31 December 2008 and (ii) costs and expenses that would have been allocated and attributable to the Pride of Aloha Vessel
had the vessel remained in service as part of the NCL America Holdings fleet until 31 December 2008, in each case based upon an allocation of corporate costs on a capacity day basis in a manner consistent with past practice and the
Guarantor’s then-currently published sailing schedule;
“Pride of Aloha Vessel”
means United States documented passenger
cruise vessel “PRIDE OF ALOHA”, official number 1153219, IMO number 9128532;
“Pride of America Vessel”
means the
United States documented passenger cruise vessel “PRIDE OF AMERICA”, official number 1146542, IMO number 9209221, and all appurtenances thereto whether on board or ashore;
“Security”
means, with respect to any Person, all equity securities or equity interests of such Person, all securities convertible into or exchangeable for equity securities or equity
interests of such Person, and all options, warrants, and other rights to purchase or otherwise acquire from such Person equity interests, including any stock appreciation or similar rights, contractual or otherwise;
“Shared Overhead Expenses”
means those overhead expenses incurred by the Guarantor and any of its subsidiaries which are attributable to
the operation and management of the NCLA Business based upon an allocation of corporate costs on a capacity day basis in a manner consistent with past practice and the Guarantor’s then-currently published sailing schedule, and shall include any
capital expenditures made by the Guarantor and any of its subsidiaries (other than NCL America Holdings and its subsidiaries) with respect to the NCLA Business;
82
“Shut Down Costs”
shall mean (i) any and all costs and expenses incurred by the
Guarantor and any of its subsidiaries in connection with the shut down of the operation and management of the NCLA Business, whether accrued or paid and (ii) all documentary, gross receipts, sales, transfer and use taxes and similar
liabilities, if any, resulting directly or indirectly from the transactions contemplated by clause 3.3 and clause 3.4 of this Appendix;
“Shut Down Procedure”
means all actions necessary in connection with the shut down of the operation and management of the NCLA Business,
including taking all steps reasonably necessary to wind-up and liquidate, in liquidations qualifying as complete liquidations under section 331 of the Code, NCL America Holdings and each of the Subsidiaries of NCL America Holdings (except as
otherwise agreed by Investor I and NCL America Holdings);
“Star Group”
means Star together with its Permitted
Transferees who hold Equity Securities;
“Subscription Price”
means USD1,000,000,000;
“Subsidiaries”
means, with respect to any Person, any corporation, association, partnership, limited liability company or other business
entity of which fifty per cent. (50%) or more of the total voting power of equity securities or equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of
managers, directors, representatives or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of
such Person. For the purposes of this definition, the term “controlled” means the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding the foregoing, WorldCard International Limited shall be deemed not to be a “Subsidiary” of Star for the purposes of the Subscription Agreement;
“Transaction Documents”
means the Apollo Transaction Documents, the Amended and Restated Incorporation Documents, the Voting Agreement
and all other documents, agreements and instruments executed and delivered in connection therewith, in each case, as amended, modified or supplemented from time to time;
“Transfer”
means, as to any Security or asset, to sell, transfer, assign, gift, pledge, grant a security interest in, distribute, encumber or otherwise dispose of (including the
foreclosure or other acquisition by any lender with respect to such Security or asset pledged to such lender by the holder of such Security or asset), whether directly or indirectly, such Security or asset, either voluntarily or involuntarily and
with or without consideration; and
“Voting Agreement”
means the voting agreement dated as of 17 August 2007, by and
among Investor I and certain of the Existing Star Controlling Shareholders.
83
Schedule 1
Accumulated Book Depreciation
[*]
84
APPENDIX VI
CALCULATION OF MANDATORY COST
|
1
|
The Mandatory Cost is an addition to the interest rate to compensate the Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
|
2
|
On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the
“Additional Cost
Rate”
) for each Lender in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the Loan) and will be expressed as a percentage rate per annum.
|
|
3
|
The Additional Cost Rate for any Lender lending from an office in the euro-zone will be the percentage notified by that Lender to the Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender’s participation in the Loan) of complying with the minimum reserve requirements of the European Central Bank as a result of participating in the Loan from that office.
|
|
4
|
The Additional Cost Rate for any Lender lending from an office in the United Kingdom will be calculated by the Agent as follows:
|
|
|
(a)
|
where the Loan is denominated in sterling:
|
BY + S(Y—Z) + F x 0.01
per cent per annum
100—(B + S)
|
|
(b)
|
where the Loan is denominated in any currency other than sterling:
|
F x 0.01
per cent per annum
300
where:
|
|
B
|
is the percentage of eligible liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements;
|
|
|
Y
|
is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an overdue amount, the additional rate of interest specified in
Clause 12) payable for the relevant Interest Period on the Loan;
|
|
|
S
|
is the percentage (if any) of eligible liabilities which that Lender is required from time to time to maintain as interest bearing special deposits with the Bank of
England;
|
|
|
Z
|
is the interest rate per annum payable by the Bank of England to that Lender on special deposits; and
|
85
|
|
F
|
is the charge payable by that Lender to the Financial Services Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations or the equivalent
provisions in any replacement regulations (with, for this purpose, the figure for the minimum amount in paragraph 2.02b or such equivalent provision deemed to be zero), expressed in pounds per GBP1 million of the fee base of that Lender.
|
|
5
|
For the purpose of this Schedule:
|
|
|
(a)
|
“eligible liabilities”
and
“special deposits”
have the meanings given to them at the time of application of the formula by the Bank of
England;
|
|
|
(b)
|
“fee base”
has the meaning given to it in the Fees Regulations;
|
|
|
(c)
|
“Fees Regulations”
means the regulations governing periodic fees contained in the Financial Services Authority Fees Manual or such other law or
regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits.
|
|
6
|
In the application of the formula B, Y, S and Z are included in the formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5. x
15. Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places.
|
|
7
|
If a Lender does not supply the information required by the Agent to determine its Additional Cost Rate when requested to do so, the applicable Mandatory Cost shall be
determined on the basis of the information supplied by the remaining Lenders.
|
|
8
|
If a change in circumstances has rendered, or will render, the formula inappropriate, the Agent shall notify the Borrower of the manner in which the Mandatory Cost will
subsequently be calculated. The manner of calculation so notified by the Agent shall, in the absence of manifest error, be binding on the Borrower.
|
86
APPENDIX VII
SPECIMEN REPAYMENT SCHEDULE (for illustrative purposes only)
As the interest rate is a floating rate (implying the future prevailing interest rates are unknown) and as we aim to approximate a mortgage style
2
, the methodology agreed is as follows:
|
|
•
|
|
Step 1: We define the principal repayment profile by using as the interest rate LIBOR prevailing at the drawdown date (including the margin)
|
|
|
•
|
|
Step 2: We calculate the interest payments by taking the prevailing LIBOR every six (6) months and apply it to the principal repayment amounts
determined at step 1.
|
|
|
•
|
|
Tenor: 3 years, with semi-annual instalments
|
|
|
•
|
|
LIBOR at the drawdown date: 2%
|
|
2.2
|
Step 1: Definition of the principal repayment profile
|
Based on the above assumptions and methodology, we have obtained the following repayment profile for the principal:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Libor rate
(including
margin)
|
|
|
Principal
repayments
|
|
|
Interest
payments
|
|
|
Principal +
Interest
|
|
|
|
|
H1
|
|
|
3.0
|
%
|
|
|
16.05
|
|
|
|
1.50
|
|
|
|
17.55
|
|
|
|
H2
|
|
|
3.0
|
%
|
|
|
16.29
|
|
|
|
1.26
|
|
|
|
17.55
|
|
|
|
H3
|
|
|
3.0
|
%
|
|
|
16.54
|
|
|
|
1.01
|
|
|
|
17.55
|
|
|
|
H4
|
|
|
3.0
|
%
|
|
|
16.79
|
|
|
|
0.77
|
|
|
|
17.55
|
|
|
|
H5
|
|
|
3.0
|
%
|
|
|
17.04
|
|
|
|
0.51
|
|
|
|
17.55
|
|
|
|
H6
|
|
|
3.0
|
%
|
|
|
17.29
|
|
|
|
0.26
|
|
|
|
17.55
|
|
|
|
|
|
|
|
TOTAL
|
|
|
|
|
|
|
100.00
|
|
|
|
5.32
|
|
|
|
105.32
|
|
|
|
|
|
|
|
|
2.3
|
Step 2: Repayment profile during the life of the facility
|
Assuming that LIBOR will be 4% for H2, 3% for H3, 5% for H4, 1% for H5 and 2% for H6, we have calculated interest payments and obtained the following repayment profile during the life of the facility.
|
2
|
“Mortgage style” means that all instalments are equal (principal repayment + interest payment = constant, during the entire repayment
period)
|
87
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Libor rate
(including
margin)
|
|
|
Principal
repayments
|
|
|
Interest
payments
|
|
|
Principal +
Interest
|
|
|
|
|
H1
|
|
|
3.0
|
%
|
|
|
16.05
|
|
|
|
1.50
|
|
|
|
17.55
|
|
|
|
H2
|
|
|
5.0
|
%
|
|
|
16.29
|
|
|
|
2.10
|
|
|
|
18.39
|
|
|
|
H3
|
|
|
4.0
|
%
|
|
|
16.54
|
|
|
|
1.35
|
|
|
|
17.89
|
|
|
|
H4
|
|
|
6.0
|
%
|
|
|
16.79
|
|
|
|
1.53
|
|
|
|
18.32
|
|
|
|
H5
|
|
|
2.0
|
%
|
|
|
17.04
|
|
|
|
0.34
|
|
|
|
17.38
|
|
|
|
H6
|
|
|
3.0
|
%
|
|
|
17.29
|
|
|
|
0.26
|
|
|
|
17.55
|
|
|
|
|
|
|
|
TOTAL
|
|
|
|
|
|
|
100.00
|
|
|
|
7.09
|
|
|
|
107.09
|
|
|
|
|
|
|
|
88
Exhibit 10.42
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 22 JULY 2010
NORWEGIAN EPIC, LTD.
(formerly known as
F3 TWO, LTD.)
(as borrower)
NCL CORPORATION LTD.
(as guarantor)
THE SEVERAL BANKS
(particulars of which are set out in Schedule 1)
(as lenders)
BNP PARIBAS
(as agent)
FIFTH SUPPLEMENTAL DEED TO (AMONG OTHER THINGS)
LOAN AGREEMENT
dated 22 September 2006
for the equivalent amount in United States Dollars of
the amount of up to EUR662,905,320
post delivery finance for a passenger
cruise vessel
“NORWEGIAN EPIC” (ex hull no. D33
at the yard of Aker Yards S.A. (now known as STX France S.A.))
STEPHENSON HARWOOD
One St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/45-01178/45-01079/46-01271/47-02890/48-03440/49-00642
CONTENTS
|
|
|
|
|
|
|
|
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|
|
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|
Page
|
|
|
|
|
|
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1
|
|
Definitions and Construction
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
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2
|
|
|
|
|
|
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3
|
|
Conditions Precedent
|
|
|
3
|
|
|
|
|
|
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4
|
|
Representations and Warranties
|
|
|
5
|
|
|
|
|
|
|
5
|
|
Fee and Expenses
|
|
|
6
|
|
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6
|
|
Further Assurance
|
|
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6
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|
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7
|
|
Counterparts
|
|
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6
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8
|
|
Notices
|
|
|
6
|
|
|
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|
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9
|
|
Governing Law
|
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7
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|
|
|
10
|
|
Jurisdiction
|
|
|
7
|
|
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|
|
Schedule 1
|
|
The Agent and the Lenders
|
|
|
11
|
|
|
|
|
|
|
Schedule 2
|
|
Amendment of Original Loan Agreement
|
|
|
12
|
|
|
|
|
|
|
Schedule 3
|
|
Amendment of Original Guarantee
|
|
|
13
|
|
FIFTH SUPPLEMENTAL DEED
DATED 22 JULY 2010
BETWEEN:
|
(1)
|
NORWEGIAN EPIC, LTD.
(formerly known as F3 Two, Ltd.), a company incorporated in and existing under the laws of Bermuda with registration number EC38768 and with
its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as borrower (the “
Borrower
”);
|
|
(2)
|
NCL CORPORATION LTD.
, a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12,
Bermuda as guarantor (the “
Guarantor
”);
|
|
(3)
|
THE SEVERAL BANKS
particulars of which are set out in Schedule 1 as lenders (collectively the
“Lenders”
and each individually a
“
Lender
”); and
|
|
(4)
|
BNP PARIBAS
as agent for the lenders (the “
Agent
”).
|
WHEREAS:
|
(A)
|
By a loan agreement dated 22 September 2006 as amended and restated by a first supplemental deed thereto dated 21 December 2007 and as further amended and
restated by a third supplemental deed thereto dated 2 April 2009 and a fourth supplemental deed thereto dated 9 June 2010 entered into between (among others) the Borrower as borrower, the Lenders as lenders and the Agent as agent for
(among others) the Lenders (the “
Original Loan Agreement
”), the Lenders granted to the Borrower a secured loan in the equivalent amount in United States Dollars of the maximum amount of six hundred and sixty two million nine hundred
and five thousand three hundred and twenty euro (EUR662,905,320) (the “
Loan
”) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan
Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by a guarantee and indemnity dated 6 October 2006 as amended and restated by a first supplemental deed thereto dated
21 December 2007 and as further amended and restated by a third supplemental deed thereto dated 2 April 2009 granted by the Guarantor (the “
Original Guarantee
”).
|
|
(B)
|
The Borrower and the Guarantor have requested the Lenders and the Agent, among other things, to consent to the amendment of the definition of Permitted
Indebtedness (as defined in the Original Loan Agreement), to enable any member(s) of the Group to order the New Vessels (as defined in the Loan Agreement) (or either of them), and to allow the Guarantor to pay dividends after the listing of the
ordinary capital stock of the Guarantor on an Approved Stock Exchange (as defined in the Original Guarantee).
|
|
(C)
|
The consent of the Lenders and the Agent is given in respect of the above matters on the terms of this fifth supplement to the Original Loan Agreement (this
“
Deed
”) which shall be executed as a deed.
|
NOW THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Construction
|
|
|
1.1
|
In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall
have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Original Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have
the meanings set out below:
|
“
Effective Date
” means the date on which the conditions precedent
set out in Clause 3.1 are fulfilled to the satisfaction of the Agent or waived by the Agent pursuant to Clause 3.2;
“
Guarantee
” means the Original Guarantee as amended by this Deed;
“
Loan Agreement
” means the Original Loan Agreement as amended by this Deed; and
“
New Process Agent
” means EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP.
|
|
1.2
|
The provisions of clause 1.2 of the Loan Agreement shall apply hereto (mutatis mutandis).
|
|
2
|
Amendment of Original Loan Agreement, Original Guarantee and Other Security Documents
|
|
|
2.1
|
Subject to Clause 3.1, the parties hereto agree that immediately upon and with effect from the Effective Date the Original Loan Agreement and the Original Guarantee
shall be read and construed as if the definitions or clauses referred to in the first column of Schedule 2 or Schedule 3 to this Deed (as the case may be) had been inserted or amended to read as set out in the second column of Schedule 2 or Schedule
3 to this Deed (as the case may be).
|
|
|
2.2
|
Each of the Borrower and the Guarantor hereby confirms to the Lenders and the Agent that with effect from the Effective Date:
|
|
|
2.2.1
|
all references to the Original Loan Agreement or the Original Guarantee in the other Security Documents shall be construed as references to the Loan Agreement or the
Guarantee (as the case may be) and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement;
|
|
|
2.2.2
|
the Security Documents shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement, until it has been
repaid or paid in full to the Lenders (or to the Agent on their behalf) and the Agent;
|
|
|
2.2.3
|
its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution
of this Deed or of any of the documents or transactions contemplated hereby
|
2
|
|
and in particular but without limitation by the granting of time to the Borrower under the Original Loan Agreement; and
|
|
|
2.2.4
|
its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan
Agreement and the other Security Documents as amended by this Deed.
|
|
|
2.3
|
Except as expressly amended hereby or pursuant hereto the Original Loan Agreement, the Original Guarantee and the other Security Documents shall remain in full force
and effect and nothing herein contained shall relieve the Borrower, the Guarantor or any other Obligor from any of its respective obligations under any such documents.
|
|
|
3.1
|
The amendment of the Original Loan Agreement and the Original Guarantee provided for in Clause 2 is conditional upon and shall not be effective unless and until the
Agent has received the following in form and substance satisfactory to it:
|
|
|
3.1.1
|
on the date of this Deed:
|
|
|
(a)
|
one (1) counterpart of this Deed duly executed by the parties hereto;
|
|
|
(b)
|
a written confirmation from the New Process Agent that it will act for each of the Borrower and the Guarantor as agent for service of process in England in respect of
this Deed;
|
|
|
(c)
|
the following corporate documents in respect of each of the Borrower and the Guarantor (together the “
Relevant Parties
”):
|
|
|
(i)
|
Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant
Party of its obligations under this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are
required;
|
|
|
(ii)
|
a notarially attested secretary’s certificate of each of the Relevant Parties:
|
|
|
(1)
|
attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the
entering into of the transactions contemplated in this Deed;
|
|
|
(2)
|
giving the names of its present officers and directors;
|
|
|
(3)
|
setting out specimen signatures of such persons as are authorised by the Relevant Party to sign
|
3
|
|
documents or otherwise undertake the performance of that Relevant Party’s obligations under this Deed;
|
|
|
(4)
|
giving the legal owner of its shares and the number of such shares held;
|
|
|
(5)
|
attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders of each of the Relevant Parties
authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and
|
|
|
(6)
|
containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party;
|
or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last
provided to the Agent with respect to paragraphs (1), (2), (3), (4) and (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders
of each of the Relevant Parties authorising (as applicable) the execution of this Deed and any document to be executed pursuant hereto and the issue of any power of attorney to execute the same; and
|
|
(iii)
|
the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested;
|
|
|
(d)
|
evidence that each of the Lenders has received payment of the handling/work fee to which it is entitled as more particularly described in Clause 5.1; and
|
|
|
3.1.2
|
evidence that all the conditions precedent to the amendment of each facility agreement and, if applicable, guarantee in respect of each Group Credit Facility have been
satisfied;
|
|
|
3.1.3
|
evidence that all other sums owing to the Agent and the Lenders pursuant to Clause 5 of this Deed have been received; and
|
|
|
3.1.4
|
agreement to the issue of such favourable written legal opinions including by Conyers Dill & Pearman in respect of Bermuda and Stephenson Harwood in respect of
England in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law,
|
PROVIDED THAT
no Event of Default has occurred and is continuing on the Effective Date (subject to Clause 3.2).
|
|
3.2
|
If the Agent in accordance with clause 20 of the Original Loan Agreement decides to permit the amendment of the Original Loan Agreement and the
Original
|
4
|
|
Guarantee hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within
fourteen (14) days of the Effective Date (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Agent’s right to
receive the documents or evidence as aforesaid nor shall this provision impose on the Agent or the Lenders any obligation to permit the amendment in the absence of such documents or evidence.
|
|
4
|
Representations and Warranties
|
|
|
4.1
|
Each of the Borrower and the Guarantor represents and warrants to the Lenders and the Agent that:
|
|
|
4.1.1
|
it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry
into and performance of this Deed and such transactions and documents;
|
|
|
4.1.2
|
this Deed constitutes and each other document contemplated hereby to which it is a party will, when executed, constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
|
|
|
4.1.3
|
its entry into and performance of this Deed and the transactions and documents contemplated hereby do not and will not conflict with:
|
|
|
(a)
|
any law or regulation or any official or judicial order; or
|
|
|
(b)
|
its constitutional documents; or
|
|
|
(c)
|
any agreement or document to which it is a party or which is binding upon it or any of its assets,
|
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or
document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to
the Lenders and/or the Agent;
|
|
4.1.4
|
all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection
with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and
effect;
|
|
|
4.1.5
|
all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents
contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and
|
5
|
|
4.1.6
|
it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to
influence the Lenders and/or the Agent in deciding whether or not to enter into this Deed.
|
|
|
5.1
|
The Borrower shall pay to each of the Lenders directly or through the Agent on the date of this Deed a non-refundable handling/work fee of [*] provided that a Lender
which is the provider of any other loan or other facility to the Borrower or any other member of the Group shall only be entitled to receive one (1) such fee of [*]. Notwithstanding any provision of this Deed, the Original Loan Agreement or the
Loan Agreement to the contrary, no Lender shall be required to share with the other Lenders and/or the Agent any such handling/work fee received.
|
|
|
5.2
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for all charges and expenses (together with
value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent in respect of, or in connection with, the negotiation, preparation, printing, execution,
registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed.
|
|
|
5.3
|
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent and the Lenders on demand of the Agent on a full indemnity basis for all charges
and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal advisers) incurred by the Agent and/or the Lenders in respect of this Deed or in connection with the enforcement
of, or the preservation of any rights under, this Deed or any of the Security Documents.
|
Each
of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the
Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Lenders and/or the Agent the full benefit of the rights, powers and remedies conferred upon the Lenders and/or
the Agent in any such document.
This Deed
may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
|
|
8.1
|
Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower and/or the Guarantor pursuant to this Deed
shall (unless the Borrower or the Guarantor has by fifteen (15) days’ written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126,
United States
|
6
|
|
of America (marked for the attention of the Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West
57
th
Street, 43
rd
Floor, New York, NY 10019, United States of America (marked for the
attention of Mr Steve Martinez). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days’ written notice to the Borrower
and the Guarantor specified another address) be made or delivered to the Agent at ECEP/Export Finance, ACI: CHDESA1, 37 Place du Marché Saint-Honoré, 75031 Paris Cedex 01, France (marked for the attention of Mrs Dominique Laplasse
(Team Head)/Mr Jean Philippe Poirier).
|
|
|
8.2
|
Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date
hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to the Investors c/o Apollo
Management, LP, fax number +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and in respect of the Agent is +33 01 4316 8184/+33 01 4298 0029 (marked for the attention of Mrs Dominique Laplasse (Team Head)/Mr Jean Philippe
Poirier)) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent by the Borrower or the
Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretary’s certificate required to
be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent to the Borrower and the Guarantor.
|
|
|
8.3
|
Subject to Clause 8.2, the provisions of clause 27 of the Original Loan Agreement shall apply to this Deed.
|
This
Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
10.1
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
10.1.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
10.1.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 10.1 is for the benefit of the Agent and
the Lenders only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in
7
any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions.
|
|
10.2
|
Each of the Borrower and the Guarantor appoints in the case of the courts of England the New Process Agent to receive, for and on its behalf service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
10.3
|
Neither of the Borrower or the Guarantor may, without the Agent’s prior written consent, terminate the appointment of the New Process Agent; if the New Process
Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the
Borrower’s and/or the Guarantor’s (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with
proceedings in the English courts which relate to this Deed.
|
|
|
10.4
|
For the purpose of securing its obligations under Clause 10.3, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a
process agent within the period specified in Clause 10.3, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrower’s or the Guarantor’s (as the case may be)
process agent in England with the unconditional authority described in Clause 10.3.
|
|
|
10.5
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may
be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment.
|
|
|
10.6
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the
case may be) and may be enforced without review in any other jurisdiction.
|
|
|
10.7
|
Nothing in this Clause shall exclude or limit any right which the Agent or the Lenders may have (whether under the laws of any country, an international convention or
otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
10.8
|
In this Clause “
judgment
” includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
8
IN WITNESS
whereof the parties hereto have caused this Deed to be duly executed as a deed on the day
and year first before written.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
by Micha Withoft
|
|
)
|
|
for and on behalf of
|
|
) /s/ Micha Withoft
|
|
NORWEGIAN EPIC, LTD.
(formerly known as
|
|
)
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F3 Two, Ltd.)
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)
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in the presence of:
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)
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/s/ David Griffiths
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David Griffiths
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One St. Paul’s Churchyard
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London
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EC4M 8SH
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Micha Withoft
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)
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for and on behalf of
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) /s/ Micha Withoft
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NCL CORPORATION LTD.
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)
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in the presence of:
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)
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/s/ David Griffiths
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David Griffiths
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As Above
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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for and on behalf of
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) /s/ Danae Zoi Mariel Ugolini
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BNP PARIBAS
|
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)
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as a Lender and the Agent
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)
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in the presence of:
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)
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/s/ David Griffiths
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David Griffiths
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As Above
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9
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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|
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by Danae Zoi Mariel Ugolini
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)
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|
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for and on behalf of
|
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) /s/ Danae Zoi Mariel Ugolini
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CREDIT AGRICOLE CORPORATE
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)
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AND INVESTMENT BANK
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)
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in the presence of:
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)
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/s/ David Griffiths
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David Griffiths
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As Above
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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by Danae Zoi Mariel Ugolini
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)
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for and on behalf of
|
|
) /s/ Danae Zoi Mariel Ugolini
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HSBC FRANCE
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)
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in the presence of:
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)
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|
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/s/ David Griffiths
|
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David Griffiths
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As Above
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SIGNED SEALED
and
DELIVERED
as a
DEED
|
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)
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|
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by Danae Zoi Mariel Ugolini
|
|
)
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|
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|
for and on behalf of
|
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) /s/ Danae Zoi Mariel Ugolini
|
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SOCIETE GENERALE
|
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)
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in the presence of:
|
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)
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/s/ David Griffiths
|
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David Griffiths
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As Above
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10
Schedule 1
The Agent and the Lenders
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Name
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Registered Address
|
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Registered Number with
the Registry of Trade and
Companies
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BNP PARIBAS
(as a Lender and the Agent)
|
|
16 boulevard des Italiens,
75009 Paris, France
|
|
662 042 449 (RCS Paris)
|
|
|
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CREDIT AGRICOLE
CORPORATE AND
INVESTMENT BANK
(formerly known as
Calyon)
|
|
9 quai du Président Paul
Doumer, 92920 Paris La
Défense Cedex,
France
|
|
304 187 701 (RCS Nanterre)
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|
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HSBC FRANCE
|
|
103 avenue des Champs
Elysées, 75419 Paris, Cedex
08,
France
|
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775 670 284 (RCS Paris)
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SOCIETE GENERALE
|
|
29 boulevard Haussmann,
75009 Paris, France
|
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552 120 222 (RCS Paris)
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each a French société anonyme
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11
Schedule 2
Amendment of Original Loan Agreement
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|
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Clause/Definition
|
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Amendment
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|
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Clause 1.1, definition of
“Fifth Supplemental Deed”
|
|
means the fifth supplemental deed dated
2010 to this Agreement and the Guarantee.
|
|
|
|
|
Clause 1.1, definition
(new) of
“New
Vessels”
|
|
means the two (2) newbuild cruise vessels
each not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of passenger cabins or gross or net tonnage, not on order by a member of the Group as of the Effective Date (as
defined in the Fifth Supplemental Deed) and (on a non-binding basis) expected to cost, in aggregate, [*].
|
|
|
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Clause 1.1, definition of
“Permitted
Indebtedness”
|
|
means (a) any monies borrowed or raised other
than from any direct or indirect shareholder of the Guarantor prior to the date on which the last of the Third Supplemental Deed and the Amendment Documents have been signed by all the parties thereto and notified by the Guarantor to the Agent prior
to such date; (b) the Letter of Credit Facilities; (c) Permitted Refinancing Indebtedness and (d) one or more financing arrangements entered into in relation to the acquisition of the New Vessels (or either of them), the agreed form(s) of the term
sheet(s) related to such financing arrangement(s) having been disclosed by the Guarantor to Coface (at 12 Cours Michelet, La Défense, 92800 Puteaux, France, facsimile: +33 (0)1 4902 2724, attention: Jean-Marc Auriault/Pascale Lefevre,
with a copy of the covering letter only to the Agent) prior to their execution by the Guarantor or any other member of the Group and such financing arrangement(s) being on terms satisfactory to Coface. The term sheet(s) will be disclosed to Coface
on the basis that the terms of such financing arrangement(s) shall be deemed satisfactory unless Coface notifies the Guarantor to the contrary within five (5) business days (in the city in which Coface has its office) of receipt of the term
sheet(s).
|
12
Schedule 3
Amendment of Original Guarantee
|
|
|
|
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Clause
|
|
Amendment
|
|
|
|
|
Clause
10.9 (final sentence)
|
|
For the avoidance of doubt the purchase of
a vessel other than the New Vessels shall not be permitted under this Clause 10.9 or any other provision of the Loan Agreement or this Deed.
|
|
|
|
|
Clause 10.10 (new)
|
|
The Guarantor shall not (and will procure
that no other company in the Group shall) commit to the purchase of a New Vessel unless the relevant Permitted Indebtedness is available to the buyer unconditionally subject only to the satisfaction of conditions precedent usual for such financing
arrangements.
|
|
|
|
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Clause
11.3
|
|
The Guarantor shall not and shall procure
that no other member of the Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the Group; (ii) the
Guarantor may pay dividends in respect of tax liability to each relevant jurisdiction in respect of 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 treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock of the Guarantor on an Approved Stock
Exchange, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which
accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default exists or would result from the payment of such dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to
Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 of the Guarantee is less than 5.50:1.00.
The Guarantor will procure that any dividends or other distributions and interest
paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of
dividend.
|
13
Exhibit 10.52
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
BAREBOAT CHARTER
Ample
Avenue Limited, as owner (the “
Owner
”) of the vessel described in Part I of this Charter (the “
Vessel
”, which expression includes all appurtenances, equipment, necessaries, parts and spares belonging or relating to
the Vessel), hereby agrees to let, and NCL (Bahamas) Ltd. d/b/a Norwegian Cruise Line as bareboat charterer (the “
Charterer
”) of the Vessel hereby agrees to hire the Vessel on a bareboat charter basis on and subject to the terms and
conditions of Parts I and II of this Bareboat Charter (the “
Charter
”). (The Owner and the Charterer are collectively referred to as the “
Parties
” and each a “
Party
”.)
PART I
The
Vessel is named m.v. Norwegian Sky, is registered under the Bahamas flag with Bahamian flag at the port of Nassau with Official No.731038, IMO No. 9128532 and Call Sign C6PZ8, and is entered with Det Norske Veritas (the “
Classification
Society
”) with classification † 1A1 Passenger Ship EO.
This
Charter shall be effective and commence as of the Effective Time defined in Part I, Clause 7(a) and shall continue uninterrupted until 31 December, 2012 (the “
Initial Term
”).
This Charter may be extended upon the request of either Party for a maximum of two (2) consecutive terms after the Initial Term,
namely 1 January 2013 to 31 December 2013 (the “
First Extension Term
”) and 1 January 2014 to 31 December 2014 (the “
Second Extension Term
”) provided that: (a) the Charter shall only be
extended for one (1) year each time; (b) any extension shall be subject to the mutual consent of the Parties; (c) the requesting Party shall, at least [*] prior to the expiry of the current term (the Initial Term or the First
Extension Term, as the case may be) send to the other Party notice in writing of its intention to extend the Charter for one (1) year after the expiry of the current term; and (d) the requesting Party is not in default of this Charter at
the time of sending the aforesaid extension notice and at all times before the expiry of the current term. Unless otherwise agreed by the Parties, all terms and conditions of this Charter shall remain the same in, as may be applicable, the First
Extension Term and the Second Extension Term and “Charter Term” shall be construed to include the Initial Term and, as may be applicable, the First Extension Term and the Second Extension Term.
|
3
|
Date and Place of Delivery and Redelivery
|
The Owner shall be deemed to have delivered the Vessel to the Charterer as of [*]. If at any point during the Initial Term, First Extension Term (if exercised) or Second Extension Term (if exercised) the
Vessel is not purchased pursuant to Part I Clause 7(f), the Charterer shall redeliver the Vessel to the Owner at the end of the Charter Term at a safe berth in a safe port on [*]. The Charterer shall notify the Owner of the proposed redelivery port
by written notice delivered [*] before the end of the Charter Term.
The Vessel may be employed worldwide provided that the Charterer undertakes that the Vessel shall not be sent to or operated within any
area prohibited by the Vessel’s flag state or any of the Vessel’s insurers.
During the
Charter Term the Charterer shall pay the Owner hire (“
Charter Hire
”) calculated in accordance with the following formula which shall be payable at the end of each calendar month in accordance with Appendix 1:
Charter Hire = [*]
Note: Stipulated Value shall have an initial value of [*] and shall, for the purpose of calculating Charter Hire throughout the Charter Term, be reducing monthly at the rate of [*].
All Charter Hire payments shall be made by wire transfer to such account as the Owner may from time to time direct. For the avoidance
of doubt, Appendix 1 shall govern and control all payment s made hereunder.
The agreed
minimum total loss value of the Vessel shall be (see Part II, Clause 4) [*].
For the purposes of this Charter, the term
“total loss” includes the actual, agreed, constructive or compromised total loss or destruction of the Vessel.
“
Effective Time
” shall mean 1 July 2010.
In
this Charter the term “fair wear and tear” shall mean and include only the following: (i) thinning of paint due to the action of time and elements; (ii) scuffing of paint by rubber tired vehicles and properly fendered tugs;
(iii) rust or corrosion due to contact with sea water and air; or (iv) fouling of hull by growth of marine organisms. Fair wear and tear shall not include damage to the Vessel’s deck, internal parts or hull that results from the
Charterer’s use of the Vessel or otherwise.
|
|
(c)
|
Vessel Loss or Damage; Redelivery
|
The Charterer, as bareboat charter operator of the Vessel before entry and inception of this Charter, shall have all risks of loss and damage to the Vessel before as well as during the Charter Term except
only the risk of fair wear and tear to the Vessel during the Charter Term. Except where the Charterer exercises the Purchase Option under Part I, Clause 7(f), the Charterer shall redeliver the Vessel to the Owner with class maintained free of any
class conditions or recommendations and with all survey cycles and certificates up to date and valid for a minimum of 3 months forward from the date of redelivery, free of any average damage affecting class and otherwise in the same structure,
state, order and condition
as at [*] (for determining such condition, the on-hire survey conducted in relation to the charter period immediately preceding the Charter Term shall be used as a reference), fair wear and tear
during the Charter Term excepted.
During
the Charter Term the Vessel shall be in the full possession of the Charterer and under its complete control. The Charterer shall at its own cost and risk crew, manage, maintain, navigate, operate, insure, victual, fuel, provision, supply and
(whenever the same may be necessary) repair and dry-dock the Vessel. The Master, officers and crew shall be the servants and representatives of the Charterer for all purposes whatsoever and the Charterer shall be exclusively responsible for ensuring
full compliance with all conventions, laws, regulations and rules whatsoever respecting the Master, officers and crew. The Owner shall retain no possession or control of or over the Vessel during the Charter Term, the agreed intention of the
Parties’ being that the Vessel shall be hired and operated by the Charterer on a bareboat basis.
|
|
(e)
|
Charterer’s Undertakings
|
The Charterer undertakes:-
|
|
(i)
|
Not to change the flag or the classification society of the Vessel, without the Owner’s prior written consent;
|
|
|
(ii)
|
Not to make any structural alternations to the Vessel without the Owner’s prior written approval, which shall not be unreasonably withheld (for the avoidances of
doubt, such approval, if granted, shall in no way affect the Charterer’s obligation to redeliver the Vessel in accordance with the requirements under Part I, Clause 7(c));
|
|
|
(iii)
|
To comply with all of the assignments, undertakings and other obligations from time to time owed by it to the Owner’s financiers under the General Assignment
executed by the Owner and the Charterer in favour of the Credit Agricole Asia Shipfinance Limited dated [*] or otherwise; and
|
|
|
(iv)
|
To enter into such further documents as the Owner’s financiers may reasonably require in connection with the Owner entering into this Charter with the Charterer.
|
In
consideration of [*] paid by the Charterer to the Owner (the receipt and sufficiency of which is hereby acknowledged), the Owner grants to the Charterer an option (the “
Purchase Option
”) to purchase the Vessel at any time during the
Charter Term at a price equivalent to [*] reduced by [*] of the aggregate of all Charter Hire paid by the Charterer prior to the completion of acquisition with details set out in Appendix 1 (the “
Purchase Consideration
”) provided
that:
|
|
(i)
|
The Charterer shall give a notice in writing to the Owner [*] (which notice shall state the proposed date of the sale and purchase);
|
|
|
(ii)
|
The Charterer may assign its rights under the Purchase Option to its holding company or subsidiary;
|
|
|
(iii)
|
At completion of the acquisition, the Charterer (or a designated holding company or subsidiary of the Charterer) shall pay the Purchase Consideration to the Owner in
full by wire transfer to such account as the Owner may direct;
|
|
|
(iv)
|
Upon the issue of the notice in writing referred to in sub-Clause (i) above, the Owner and the Charterer (or the designated holding company or subsidiary of the
Charterer) shall enter into a sale and purchase agreement regarding the Vessel (“SPA”) which shall be mutually agreed between the Owner and the Charterer (or the designated holding company or subsidiary of the Charterer); and
|
|
|
(v)
|
This Charter shall be terminated at the date and time of the vessel delivery being actually carried out under the SPA.
|
|
|
(g)
|
Early Termination by the Owner
|
The Owner may at any time during the Charter Term terminate this Charter without liability on its part and without being subject to the Purchase Option, if prior to giving notice of termination the
Charterer has not exercised the Purchase Option pursuant to Part I Clause 7(f), by giving a notice of not less than 6 months to the Charterer (the Vessel shall be redelivered to the Owner in accordance with the requirements under this Charter as if
the redelivery is required upon the expiry of the Charter Term). The Charterer may request the Owner to postpone the date of termination of the Charter under this sub-Clause for a maximum period of 3 months and such request shall not be unreasonably
withheld.
All
terms and conditions contained in Part II on the following pages are hereby fully incorporated by reference into and form an integral part of this Charter. In case of inconsistency between the terms and conditions contained in Part I and Part II of
this Charter, the terms and conditions contained in Part I shall prevail.
|
9
|
Termination of the Existing Charter
|
Upon execution by the Parties, the existing charter shall terminate on 30 June 2010 without further rights and liability on the part of the Parties (save as the rights, liabilities and obligations
incur/arise before the Effective Time). For the purpose of this Clause 9, “existing charter” shall mean the bareboat charter entered into between the Parties in respect of the Vessel dated 2 January 2009.
IN WITNESS WHEREOF
, the Parties have caused this Charter to be executed by their duly authorised signatories on
day of August 2010.
|
|
|
|
|
|
|
|
|
|
|
Owner
|
|
|
|
Charterer
|
|
|
|
|
|
|
|
By:
|
|
/s/ David Chua
|
|
|
|
By:
|
|
/s/ Kevin M. Sheehan
|
|
|
|
David Chua
|
|
|
|
|
|
Kevin M. Sheehan
|
|
|
|
|
|
|
|
|
|
President and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
Approved as to Form
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Daniel S. Farhas
|
|
|
|
|
|
|
|
|
|
NCL Legal Department
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Approved as to Content
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Signature Illegible
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PART II
|
1
|
Delivery and Redelivery
|
The Charterer, as bareboat charter operator of the Vessel before entry and inception of this Charter, is fully aware of the Vessel’s
condition.
The Charterer agrees that the Vessel’s condition is acceptable in every respect whatsoever and that the Vessel
is in full compliance with this Charter.
Accordingly, the Vessel shall be deemed delivered and taken over strictly “as
is, where is” and, notwithstanding any term, condition, representation or warranty whatsoever (whether express or implied) to the contrary, the Charterer shall not have or assert (and hereby waives) all claims whatsoever against the Owner,
whether known or unknown, suspected or unsuspected, accrued or unaccrued, with respect to the Vessel.
The Charterer
acknowledges and agrees that all conditions and recommendations of class shall be removed before the Vessel is redelivered to the Owner if it is not purchased pursuant to Part I Clause 7(f) of the Bareboat Charter.
If any latent defect, deficiency or non-conformity should appear or arise during the Charter Term, the Charterer shall repair or replace
the same at its cost and in its time. The Charterer agrees that the Owner shall not have any liability whatsoever to the Charterer if the Vessel should prove to be unsuitable for the Charterer’s purposes for any reason whatsoever, or if the
Vessel should cease to be available to the Charterer for any reason whatsoever except where the Charterer is deprived of the use of the Vessel by an independent breach of this Charter by the Owner.
At the end of the Charter Term the Charterer shall redeliver the Vessel to the Owner at the place of redelivery specified in Part I.
The Vessel
shall be employed by the Charterer only in lawful trades or activities in connection with the Charterer’s operations in the waters described in Part I, and not otherwise without the express prior written consent of the Owner.
|
3
|
Charter Hire And Payment
|
[*]
|
4
|
Insurance And Agreed Value
|
Throughout the term of this Charter the Charterer shall keep the Vessel insured at its cost and risk (including deductible risks), against
all risks usually insured against by first class and prudent owners and operators of passenger vessels including marine risks, hull and machinery risks, war risks, excess risks, protection and indemnity risks with full standard coverage up to the
highest limit of liability available for pollution risks, and any risks against which it is compulsory to insure by reason of the Vessel’s operations (including financial security in respect of third party liabilities) in such amounts, on such
conditions (including conditions protecting the
Owner’s interest in the Vessel), and with such independent first class insurers, underwriters and protection and indemnity associations as the Owner (acting reasonably) may approve from time
to time.
For the purposes of the insurance cover to be arranged and maintained by the Charterer, the agreed total loss value
shall not be less than the amount specified in Part I, Clause 6.
The Charter shall punctually pay all premiums, calls,
contributions or other sums payable in respect of the Vessel’s insurances and shall renew all insurances on a timely basis.
The Charterer shall bear all risks of loss of or damage to the Vessel, however and whenever the same may be caused. The Charterer shall
ensure that all sums receivable in respect of any partial loss and damage relating to the Vessel shall be applied promptly to discharge all liabilities in respect of the loss or (as the case may be) to pay all costs in respect of full repair of
damage or (as the case may be) replacement of parts or equipment so as to put the Vessel back into the condition required by this Charter.
All repair and replacement work in relation to the Vessel shall be planned and carried out (including with respect to materials and workmanship) in accordance with best practice and so as not to diminish
the value or to adversely affect the classification or insurance status of the Vessel.
For the avoidance of doubt, if any loss
of or damage to or in respect of the Vessel (including any relating to any latent defect, deficiency or non-conformity in the Vessel) is not be covered by insurance or if for any reason whatsoever the Charterer does not make any or a full insurance
recovery in respect of any such loss or damage, this shall not relieve the Charterer of its obligation promptly to discharge all liabilities in respect of the loss or (as the case may be) to pay all costs in respect of the full repair of the damage
or (as the case may be) replacement of parts or equipment so as to put the Vessel back into the condition required by this Charter.
All time relating to repair or replacement works, including time expended in any deviation from the Vessel’s itinerary, shall be for the Charterer’s account.
The Charterer shall immediately notify the Owner of any circumstance or occurrence in consequence of which the Vessel is likely to become
a total loss.
Should the Vessel become a total loss, the Charterer agrees promptly to pay the Owner the full amount of the
agreed total loss value specified in Part I, Clause 6 less the amount of any insurance proceeds received by the Owner from the Vessel’s insurers in respect of such total loss.
All insurance proceeds for loss of the Vessel shall be paid to the Owner who shall distribute the moneys between the Owner and the
Charterer according to their respective interests and taking into account any payment previously made by the Charterer to the Owner in respect of the loss.
Before inception of this Charter and upon the Owner’s request from time to time during the Charter Term, the Charterer shall provide the Owner with such documentation and information as the Owner may
require showing the
insurance cover that the Charterer has arranged and is maintaining in connection with the Vessel.
If the Charterer fails to place or maintain any of the required insurance cover or if, by any act or omission, the Charterer vitiates or invalidates any of such cover, the Charterer shall defend,
indemnify and hold harmless the Owner and the other beneficiaries of such insurance to the extent it or any of them suffers or incurs any loss, damage, liability, cost in consequence of such failure, act or omission. In addition, the Owner may (but
shall not be bound) to take such steps as it considers fit to remedy the Charterer’s default and in any such case all costs expended by the Owner shall be paid on demand by the Charterer to the Owner.
|
5
|
Surveys and Inspections
|
The Owner and the Charterer shall jointly appoint an independent surveyor for the purpose of determining and recording in writing the
condition of the Vessel and an inventory of the Vessel’s main parts and equipment at the redelivery of the Vessel under this Charter. Each Party shall bear and pay one half of the surveyor’s costs. The survey report of the Vessel prepared
by the independent surveyor in January 2009 shall be the base for the condition at delivery.
From time to time upon reasonable
notice by the Owner, the Charterer shall make the Vessel available for survey or inspection by the Owner’s nominated surveyor or inspector who shall be paid for by the Owner.
|
6
|
Maintenance and Documentation
|
Throughout the Charter Term and without prejudice to the Charterer’s obligations respecting the redelivery condition of the Vessel, the Charterer shall at its cost and in its time:
|
|
(i)
|
maintain the Vessel, its parts and equipment in a good and efficient state of repair and operating condition, in accordance with good commercial maintenance practice
and otherwise in full compliance with all conditions, recommendations, regulations and other requirements of the agencies, authorities and bodies having jurisdiction over the Vessel from time to time including, without limitation, the flag and port
state authorities, the International Maritime Organisation and the Classification Society;
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|
|
(ii)
|
submit the Vessel to continuous survey in respect of its hull and machinery and to such other surveys as may be required for classification, insurance or regulatory
purposes;
|
|
|
(iii)
|
keep the Vessel’s classification up to date with the Classification Society and comply with all classification conditions, recommendations and other requirements
on a timely basis;
|
|
|
(iv)
|
dry-dock the Vessel and clean and paint her underwater parts whenever the same may be necessary;
|
|
|
(v)
|
replace any parts or equipment that are damaged or become so worn as to be unfit for use, and carry out such repairs as may from time to time be
necessary, in accordance with best practice
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|
|
and so as not to diminish the value or to adversely affect the classification or insurance status of the Vessel; and
|
|
|
(vi)
|
procure and maintain in full force and effect, with full validity and without any restriction, all such certificates, permits, licenses and other documents as may be
required from time to time by the Classification Society and by all such national, state, local or international codes (including, without limitation, the International Management Code for the Safe Operation of Ships and for Pollution Prevention,
and the International Ship and Port Facility Security Code), laws, regulations or conventions as may be or as may become applicable to the Vessel from time to time.
|
If any improvements, capital expenditures, structural changes or new equipment should become necessary, whether by reason of new
classification or regulatory requirements or otherwise, the Charterer shall arrange for the relevant works to be carried out during the Charter Term and all related costs and time shall be for the Charterer’s account.
The
Charterer shall promptly pay all assessments, charges, debts, damages, dues, fines, liabilities, monetary sanctions, penalties, taxes, tolls and other outgoings in respect of the Vessel.
Neither the Charterer nor the Master of the Vessel nor any other person shall have any authority, power or right to create, incur or
permit to be asserted against or imposed upon the Vessel, any claims, liens or other encumbrances of any nature whatsoever, and the Charterer shall so notify any entity or person which has dealings with the Vessel including (without limitation)
repairers, suppliers, or providers of towage services or necessaries to the Vessel.
The Charterer shall carry a certified true
copy of this Charter with the Vessel’s papers on board the Vessel and undertakes that it shall, on demand, to exhibit the same to any person having business with the Charterer or the Vessel.
The Charterer agrees to defend, indemnify and hold harmless the Owner against all claims, liens and encumbrances whatsoever and to
promptly remove any claims, liens or encumbrances that are at any time asserted against or imposed on the Vessel and which are alleged to have arisen at any time before or during the Charter Term.
The Charterer further agrees to defend, indemnify and hold harmless the Owner against all loss, damage and cost resulting from any arrest,
capture, detention, restraint or other seizure of the Vessel and the consequences thereof or from acts of piracy, warlike operations or other hostile acts against or affecting the Vessel, whether there be a declaration of war or not, and against any
consequences of civil war, revolution, rebellion, insurrection or civil strife affecting the Vessel.
If the Vessel should be
arrested, captured, detained, restrained or otherwise seized the Charter will immediately notify the Owner in writing and, at the Charter’s cost and risk, take all such steps (whether by posting bail or otherwise) as may be required to procure
the immediate release of the Vessel.
Without prejudice to the Charterer’s responsibility for all claims, liens or
encumbrances arising out of the ownership or operation of the Vessel before the Charter Term and the chartering of the Vessel under this Charter, the Charterer shall not be responsible for any claims, liens or encumbrances asserted or imposed on the
Vessel in respect of any independent obligation or liability of the Owner which does not arise out of or by reason of or in connection with the chartering of the Vessel under this Charter.
The Charterer may fit additional equipment on the Vessel for use in connection with the Charterer’s operations provided that this is
done without any damage to the Vessel or any diminution in the value of the Vessel or any adverse effect on the Vessel’s classification or insurance status and further provided that no structural change may be made to the Vessel without the
Owner’s prior written consent. The Charterer may remove equipment installed by it before redelivery provided that it restores the Vessel to the same condition existing prior to installation of such equipment. The Charterer shall bear all cost
and risk of fitting, installation, removal and restoration works.
|
9
|
Assignment, Sub-charter
|
The Charterer shall not sub-charter the Vessel on any basis whatsoever or sell, assign or transfer this Charter without the prior written
consent of the Owner which consent, in the free discretion of the Owner, may be withheld without the need to give any reason or may be granted subject to the imposition of such conditions as the Owner may require.
The
Owner shall not be responsible for any transportation, use, sales, property or any other similar or dissimilar taxes or royalties levied or assessed by any taxing entity, foreign or domestic, in connection with this Charter, the Vessel or the
operation or use of the Vessel before or during the Charter Term or, to the extent applicable, for any U.S. Customs duties for repairs performed in non-U.S. shipyards, and all such taxes, duties and royalties shall be for the Charterer’s
account, and if any such are incurred, the Charterer shall promptly pay the same or defend, indemnify and hold harmless the Owner (if any have been levied or assessed against it).
|
11
|
Liability And Indemnity
|
The Charterer assumes all risks whatsoever of liability for the Vessel and for the use and operation thereof, including (without
limitation) those arising from the use or release into the environment of hazardous substances, which shall include petroleum and used oil, or any other pollutant or contaminant, hazardous, dangerous or toxic waste, substance or material as defined
in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended; the Resource Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as amended; the Hazardous Materials Transportation Act, as
amended; the Oil Pollution Act of 1990; or any other statute, law, ordinance, code or regulation of any applicable governmental agency relating to or imposing liability or standards of conduct concerning the use, production, generation, treatment,
storage, recycling, handling, transportation, release, threatened
release or disposal of any hazardous, dangerous or toxic waste, substance or material, currently in effect or at any time hereafter adopted during the Charter Term, and for injuries to or deaths
of persons and/or loss of or damage to property arising from or incident to such use or operation, whether such injuries or deaths involve the Charterer’s employees or others and whether such loss or damage involves property of the Charterer or
of others.
The Charterer shall defend, indemnify and hold harmless the Owner and every person, vessel and entity described in
Clause 14 against and from all loss, damage, liability, cost, including attorneys’ fees, arising from or in connection with such injury, death, loss or damage, however and whenever caused.
Subject
always to its rights under Clause 13, the Owner warrants that it will not disturb, or permit any person claiming through the Owner to disturb, the Charterer’s quiet possession and enjoyment of the Vessel in accordance with this Charter.
The Owner
shall be entitled to withdraw the Vessel from the Charterer’s service and/or to terminate this Charter, with immediate effect or at such later time as the Owner may select, if at any time during the Charter Term:
|
|
(i)
|
the Charterer shall fail to pay any Charter Hire on the relevant due date (as any due date may be modified by the operation of the Proviso to Part I, Clause 5), or any
other sum when payable to the Owner under this Charter, and the failure to pay is not remedied within [*] of the Charterer’s receipt of written notice from the Owner requesting payment; or
|
|
|
(ii)
|
the Charterer shall fail to perform or breach any other of its other obligations under this Charter which the Owner reasonably considers to be material, and the failure
to perform or the breach either is not remediable or is remediable but is not remedied within [*] of the Charterer’s receipt of written notice from the Owner requesting remedial action provided that any failure to perform or breach of
Charterer’s obligations with respect to insurance of the Vessel shall be remedied immediately and there shall be no grace period in relation thereto; or
|
|
|
(iii)
|
an order is made or effective resolution passed or other action taken for the suspension of payments or reorganisation, dissolution, termination of existence,
liquidation, winding-up or bankruptcy of the Charterer; or
|
|
|
(iv)
|
there is any general readjustment or rescheduling of any obligations of the Charterer which the Owner reasonably considers to be material or there is
any moratorium in respect of any debts of the Charterer or any composition or any arrangement with creditors of the Charterer or any similar proceeding or other arrangement by which any substantial part of the assets of the Charterer is made subject
to the control of
|
|
|
its creditors provided that the occurrence of any of the foregoing in relation to NCL Corporation Ltd. (“NCLC”), the Charterer or any of NCLC’s other subsidiaries shall not
constitute a termination event under this paragraph (iv) if the terms of the readjustment, rescheduling, moratorium, composition, proceeding or (as the case may be) other arrangement have been previously approved in writing by GHK (hereinafter
defined); or
|
|
|
(v)
|
a liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer is appointed in respect of the Charterer or in respect of all or any
substantial part of the assets of the Charterer; or
|
|
|
(vi)
|
the Charterer becomes or is declared insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms
of any applicable law; or
|
|
|
(vii)
|
any distress, execution, attachment or other process affects the whole or any substantial part of the assets of the Charterer and remains undischarged for a period of
30 days; or
|
|
|
(viii)
|
in any relevant jurisdiction any event occurs or any circumstance arises or any procedure is commenced which, in the reasonable opinion of the Owner, is analogous or
has a substantially similar effect to any of the events, circumstances or procedures referred to in paragraphs (iii) to (vii) above; or
|
|
|
(ix)
|
any default arises and is continuing under or in respect of any agreement, document or obligation to which the Charterer is party (or by which it is bound) which the
Owner reasonably considers to be material;
|
|
|
(x)
|
in any relevant jurisdiction any event occurs or any circumstance arises or any procedure is commenced with respect to NCLC or any of its subsidiaries which, in the
reasonable opinion of the Owner, is analogous or has a substantially similar effect to any of the events, circumstances or procedures referred to in any of paragraphs (iii) to (vii) or (ix) above; or
|
|
|
(xi)
|
the Vessel is arrested, captured, detained, restrained or otherwise seized (other than for reasons solely attributable to the Owner) and such arrest or detention is not
released within such period as the Owner (in its discretion) may allow.
|
At any time after the occurrence of any
of the circumstances or events referred to in paragraphs (i) to (xi) above, the Owner may, by notice to the Charterer immediately, or on such date as the Owner may specify, withdraw the Vessel from the Charterer’s service and/or
terminate this Charter and take possession of the Vessel wherever the same may be located, whether upon the high seas or in any port, harbour or other place. For these purposes the Owner may, without prior demand or the need for any legal process or
order, enter upon any place where the Vessel is located in order to take possession of the Vessel.
Upon the Owner’s notice of termination of this Charter pursuant to Paragraph 13 of the
Charter, the Charterer shall become obliged to pay to the Owner (a) all Charter Hire due and payable but unpaid as of the termination date; (b) any sums, other than Charter Hire, due and payable but unpaid as of the termination date; and
(c) all instalment of Charter Hire that would otherwise have fallen due for payment under this Charter if the applicable Charter Term had continued until expiry, subject to the Owner’s duty to mitigate. For the avoidance of doubt and
subject to the Owner’s duty to mitigate, should there be a termination event pursuant to this paragraph 13 and such event occurs:-
|
|
(i)
|
during the Initial term, the Charterer shall be obliged to pay all Charter Hire up to [*] only;
|
|
|
(ii)
|
during the First Extension Term, the Charterer shall be obliged to pay all Charter Hire up to [*] only;
|
|
|
(iii)
|
during the Second Extension Term, the Charter shall be obliged to pay all Charter Hire up to [*] only.
|
Either Party may terminate this Charter following the total loss of the Vessel subject and without prejudice to the Charterer’s
obligation and liability to pay the agreed total loss value to the Owner and any other sums due to the Owner under this Charter but not paid as of the date of termination of this Charter.
|
14
|
Extension Of Benefits And Limitation Of Liability
|
All defences, indemnities, immunities, limits of liability or other benefits granted or provided by this Charter or by any applicable statute to or for the benefit of the Owner or the Charterer, as the
case may be, shall also apply to and for the benefit of:
|
|
(i)
|
the Vessel and to the Master, officers and crew of the Vessel;
|
|
|
(ii)
|
all affiliates, parents, subsidiaries and shareholders of the Owner or the Charterer, as the case may be, and any vessels or other assets of any of the same;
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|
|
(iii)
|
all directors, officers, employees and servants of any of the foregoing.
|
This Charter shall be governed by and construed in accordance with English law and any dispute or claim arising under, out of or in
connection with this Charter which is not amicably settled by the Parties shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to
give effect to this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association Terms current at the time when the arbitration proceedings are commenced. The reference shall be to a panel of three
arbitrators, unless the Parties can agree on a single arbitrator, no member of which shall have any interest in or with any of the Parties. A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send written notice of
such appointment to
the other Party requiring the other Party to appoint its arbitrator within 14 days of that notice and stating that it will appoint its own arbitrator as sole arbitrator unless the other Party
appoints its arbitrator within the 14 days so specified. If the other Party does not appoint its own arbitrator and give written notice to the other Party that that it has done so within the 14 days specified, the Party referring the dispute may,
without the need for any further notice to the other Party, appoint its arbitrator as the sole arbitrator and shall notify the other Party in writing accordingly. The award of a sole arbitrator shall be binding on both Parties as if he had been
appointed by agreement. In the event of either Party using an attorney or attorneys, the prevailing Party shall be entitled to receive payment of all reasonable and properly documented legal costs and expenses.
All notices and
other communications required or permitted hereunder shall be in writing, shall be deemed duly given upon actual receipt, and shall be delivered (i) in person, (ii) by registered or certified mail (air mail if addressed to an address
outside of the country in which mailed), postage prepaid, return receipt requested, (iii) by a generally recognized overnight courier service which provides written acknowledgment by the addressee of receipt, or (iv) by facsimile or other
generally accepted means of electronic transmission, addressed as set forth below or to such other addresses as may be specified by like notice to the other Party:
If to the Charterer:
c/o Norwegian Cruise Line
7665 Corporate Center Drive
Miami, Florida 33126
Fax: +1 (305) 436-4113
Attn: Chief Executive Officer
With a copy to General Counsel at the same address and fax: +1 305 436 4117.
If to the Owner:
c/o Genting Hong Kong Limited (“GHK”)
Suite 1501, Ocean Centre
5 Canton Road, Tsimshatsui
Kowloon, Hong Kong
Fax: +852 226 854 82
Attn: Chief Operating Officer
With a copy to Senior Vice President – Legal, Company Secretarial & Compliance at the same address and fax number
+ 852 226 854 51.
Each
payment to be made by a Party under this Charter shall be made without any set-off, counterclaim or deduction.
The English law
principles of mitigation shall apply in the event of any breach of this Charter.
No modification of any provision of this Charter shall be effective unless recorded in
writing and signed by a duly authorised officer or attorney-in-fact of both Parties.
This Charter represents the final and
complete agreement of the Parties with respect to the subject written hereof. All prior written and oral agreements and understandings with respect to such subject matter are superseded by this Charter
Section headings in this Charter are for reference purposes only and shall not be used to construe any provision of this Charter.
All
information about either Party or any of their respective parent, subsidiary, affiliated, related or joint venture companies, customers, operations and the like, shall be treated as “Confidential Information” by the other Party and such
Party will not disclose same without the prior written consent of the other Party during or after expiry of the Charter Term of and after the expiration or termination of this Charter. Both Parties shall also consider the terms and conditions of
this Charter to also be Confidential Information, provided, however, it is expressly agreed that nothing in this Clause shall prohibit either Party from disclosing this Charter to its financiers or legal advisers nor shall it prohibit either Party
or NCLC or GHK from disclosing any Confidential Information that it is required to disclose by law or the rules or regulations of any stock exchange or similar body.
With respect to Confidential Information received by a Party such Confidential Information: (i) shall be held in confidence and protected in accordance with the security measures with which such
Party protects its own proprietary or confidential information which it does not wish to disclose; (ii) shall be used by such Party only to perform its responsibilities, including, without limitation, the services pursuant to this Charter;
(iii) shall not be produced or copied, in whole or in part, except as necessary for its authorized use under this Charter; (iv) shall be returned to the other Party upon request, or destroyed, together with all copies, when it is no longer
needed or upon termination or expiration of this Charter; and (v) shall not be provided to any third parties except upon the prior written consent of the other Party.
End of PART II
Appendix 1
Sky Charter / Purchase Calculation
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|
|
|
|
|
|
|
|
A
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|
B
|
|
C
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|
D
|
|
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|
Purchase
Price
|
|
Interest
|
|
Charter
Payment
|
|
[*]
|
|
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|
|
|
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Exhibit 10.57
EXECUTION COPY
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
€529,846,154
CREDIT AGREEMENT
among
NCL CORPORATION LTD.,
as Parent,
BREAKAWAY ONE, LTD.,
as Borrower,
VARIOUS LENDERS,
KFW IPEX-BANK GMBH,
as Facility Agent, Collateral Agent and CIRR Agent,
NORDEA BANK NORGE ASA,
as Documentation Agent,
and
COMMERZBANK AKTIENGESELLSCHAFT,
as Hermes Agent
Dated
November 18, 2010
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
DNB NOR BANK ASA,
HSBC BANK PLC,
KFW IPEX-BANK GMBH
and
NORDEA BANK NORGE ASA,
as Joint Lead Arrangers
TABLE OF CONTENTS
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Page
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SECTION 1. Definitions and Accounting Terms
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1
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1.01
|
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Defined Terms
|
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1
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|
SECTION 2. Amount and Terms of Credit Facility
|
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29
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2.01
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|
The Commitments
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29
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2.02
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|
Amount and Timing of Each Borrowing; Currency of Disbursements
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29
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2.03
|
|
Notice of Borrowing
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30
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2.04
|
|
Disbursement of Funds
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31
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2.05
|
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Pro Rata Borrowings
|
|
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32
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2.06
|
|
Interest
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|
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32
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2.07
|
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Interest Periods
|
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33
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2.08
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Increased Costs, Illegality, Market Disruption, etc.
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34
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2.09
|
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Indemnification; Breakage Costs
|
|
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36
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2.10
|
|
Change of Lending Office; Limitation on Additional Amounts
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36
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2.11
|
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Replacement of Lenders
|
|
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37
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2.12
|
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Disruption to Payment Systems, Etc.
|
|
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38
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|
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|
SECTION 3. Commitment Commission; Fees; Reductions of Commitment
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39
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3.01
|
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Commitment Commission
|
|
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39
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3.02
|
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Voluntary Reduction or Termination of Commitments
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39
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3.03
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Mandatory Reduction of Commitments
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39
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SECTION 4. Prepayments; Repayments; Taxes
|
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40
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4.01
|
|
Voluntary Prepayments
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40
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4.02
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Mandatory Repayments and Commitment Reductions
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40
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4.03
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|
Method and Place of Payment
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41
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4.04
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Net Payments; Taxes
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42
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4.05
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Application of Proceeds
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43
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|
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|
SECTION 5. Conditions Precedent to the Initial Borrowing Date
|
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44
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5.01
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Effective Date
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44
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5.02
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Intercreditor Agreement
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44
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5.03
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|
Corporate Documents; Proceedings; etc.
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44
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5.04
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Know Your Customer
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45
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5.05
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Construction Contract and Other Material Agreements
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45
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5.06
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Share Charge
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45
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5.07
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Assignment of Contracts
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45
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5.08
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Consents Under Existing Credit Facilities
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46
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5.09
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Process Agent
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46
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5.10
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|
Opinions of Counsel
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46
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5.11
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KfW Refinancing
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47
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(i)
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5.12
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Equity Payment
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47
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5.13
|
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Financing Statements
|
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47
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5.14
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Security Trust Deed
|
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47
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SECTION 6. Conditions Precedent to each Borrowing Date
|
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48
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6.01
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No Default; Representations and Warranties
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48
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6.02
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Consents
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48
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6.03
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Refund Guarantees
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48
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6.04
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Equity Payment
|
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48
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6.05
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Fees, Costs, etc.
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49
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6.06
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Construction Contract
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49
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6.07
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Hermes Cover
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49
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6.08
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Notice of Borrowing
|
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49
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6.09
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Solvency Certificate
|
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49
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6.10
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Litigation
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49
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SECTION 7. Conditions Precedent to the Delivery Date
|
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50
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7.01
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Delivery of Vessel
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50
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7.02
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Collateral and Guaranty Requirements
|
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50
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7.03
|
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Evidence of 20% Payment
|
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50
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7.04
|
|
Hermes Compliance; Compliance with Applicable Laws and Regulations
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50
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7.05
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Opinion of Counsel
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50
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SECTION 8. Representations and Warranties
|
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51
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8.01
|
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Entity Status
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51
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8.02
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Power and Authority
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51
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8.03
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No Violation
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52
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8.04
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Governmental Approvals
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52
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8.05
|
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Financial Statements; Financial Condition
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52
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8.06
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Litigation
|
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53
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8.07
|
|
True and Complete Disclosure
|
|
|
53
|
|
|
8.08
|
|
Use of Proceeds
|
|
|
53
|
|
|
8.09
|
|
Tax Returns and Payments
|
|
|
53
|
|
|
8.10
|
|
No Material Misstatements
|
|
|
53
|
|
|
8.11
|
|
The Security Documents
|
|
|
54
|
|
|
8.12
|
|
Capitalization
|
|
|
54
|
|
|
8.13
|
|
Subsidiaries
|
|
|
54
|
|
|
8.14
|
|
Compliance with Statutes, etc.
|
|
|
55
|
|
|
8.15
|
|
Winding-up, etc.
|
|
|
55
|
|
|
8.16
|
|
No Default
|
|
|
55
|
|
|
8.17
|
|
Pollution and Other Regulations
|
|
|
55
|
|
|
8.18
|
|
Ownership of Assets
|
|
|
56
|
|
|
8.19
|
|
Concerning the Vessel
|
|
|
56
|
|
|
8.20
|
|
Citizenship
|
|
|
56
|
|
|
8.21
|
|
Vessel Classification
|
|
|
56
|
|
|
8.22
|
|
No Immunity
|
|
|
57
|
|
(ii)
|
|
|
|
|
|
|
|
|
8.23
|
|
Fees, Governing Law and Enforcement
|
|
|
57
|
|
|
8.24
|
|
Form of Documentation
|
|
|
57
|
|
|
8.25
|
|
Pari Passu or Priority Status
|
|
|
57
|
|
|
8.26
|
|
Solvency
|
|
|
57
|
|
|
8.27
|
|
No Undisclosed Commissions
|
|
|
57
|
|
|
8.28
|
|
Completeness of Documentation
|
|
|
57
|
|
|
8.29
|
|
Money Laundering
|
|
|
58
|
|
|
|
|
|
SECTION 9. Affirmative Covenants
|
|
|
58
|
|
|
|
|
|
|
9.01
|
|
Information Covenants
|
|
|
58
|
|
|
9.02
|
|
Books and Records; Inspection
|
|
|
60
|
|
|
9.03
|
|
Maintenance of Property; Insurance
|
|
|
61
|
|
|
9.04
|
|
Corporate Franchises
|
|
|
61
|
|
|
9.05
|
|
Compliance with Statutes, etc.
|
|
|
61
|
|
|
9.06
|
|
Hermes Cover
|
|
|
61
|
|
|
9.07
|
|
End of Fiscal Years
|
|
|
61
|
|
|
9.08
|
|
Performance of Credit Document Obligations
|
|
|
61
|
|
|
9.09
|
|
Payment of Taxes
|
|
|
62
|
|
|
9.10
|
|
Further Assurances
|
|
|
62
|
|
|
9.11
|
|
Ownership of Subsidiaries
|
|
|
62
|
|
|
9.12
|
|
Consents and Registrations
|
|
|
63
|
|
|
9.13
|
|
Flag of Vessel
|
|
|
63
|
|
|
9.14
|
|
“Know Your Customer” and Other Similar Information
|
|
|
63
|
|
|
|
|
|
SECTION 10. Negative Covenants
|
|
|
63
|
|
|
|
|
|
|
10.01
|
|
Liens
|
|
|
63
|
|
|
10.02
|
|
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc.
|
|
|
65
|
|
|
10.03
|
|
Dividends
|
|
|
66
|
|
|
10.04
|
|
Advances, Investments and Loans
|
|
|
66
|
|
|
10.05
|
|
Transactions with Affiliates
|
|
|
67
|
|
|
10.06
|
|
Free Liquidity
|
|
|
69
|
|
|
10.07
|
|
Total Net Funded Debt to Total Capitalization
|
|
|
69
|
|
|
10.08
|
|
Collateral Maintenance
|
|
|
69
|
|
|
10.09
|
|
Consolidated EBITDA to Consolidated Debt Service
|
|
|
70
|
|
|
10.10
|
|
Business; Change of Name
|
|
|
70
|
|
|
10.11
|
|
Subordination of Indebtedness
|
|
|
70
|
|
|
10.12
|
|
Activities of Borrower, etc.
|
|
|
70
|
|
|
10.13
|
|
Material Amendments or Modifications of Construction Contracts
|
|
|
71
|
|
|
10.14
|
|
No Place of Business
|
|
|
71
|
|
|
|
|
|
SECTION 11. Events of Default
|
|
|
71
|
|
|
|
|
|
|
11.01
|
|
Payments
|
|
|
71
|
|
|
11.02
|
|
Representations, etc.
|
|
|
71
|
|
|
11.03
|
|
Covenants
|
|
|
71
|
|
|
11.04
|
|
Default Under Other Agreements
|
|
|
72
|
|
|
11.05
|
|
Bankruptcy, etc.
|
|
|
72
|
|
(iii)
|
|
|
|
|
|
|
|
|
11.06
|
|
Total Loss
|
|
|
73
|
|
|
11.07
|
|
Security Documents
|
|
|
73
|
|
|
11.08
|
|
Guaranties
|
|
|
73
|
|
|
11.09
|
|
Judgments
|
|
|
74
|
|
|
11.10
|
|
Cessation of Business
|
|
|
74
|
|
|
11.11
|
|
Revocation of Consents
|
|
|
74
|
|
|
11.12
|
|
Unlawfulness
|
|
|
74
|
|
|
11.13
|
|
Insurances
|
|
|
75
|
|
|
11.14
|
|
Disposals
|
|
|
75
|
|
|
11.15
|
|
Government Intervention
|
|
|
75
|
|
|
11.16
|
|
Change of Control
|
|
|
75
|
|
|
11.17
|
|
Material Adverse Change
|
|
|
75
|
|
|
11.18
|
|
Repudiation of Construction Contract or other Material Documents
|
|
|
75
|
|
|
|
|
|
SECTION 12. Agency and Security Trustee Provisions
|
|
|
76
|
|
|
|
|
|
|
12.01
|
|
Appointment and Declaration of Trust
|
|
|
76
|
|
|
12.02
|
|
Nature of Duties
|
|
|
76
|
|
|
12.03
|
|
Lack of Reliance on the Agents
|
|
|
77
|
|
|
12.04
|
|
Certain Rights of the Agents
|
|
|
77
|
|
|
12.05
|
|
Reliance
|
|
|
77
|
|
|
12.06
|
|
Indemnification
|
|
|
77
|
|
|
12.07
|
|
The Agents in their Individual Capacities
|
|
|
78
|
|
|
12.08
|
|
Resignation by an Agent
|
|
|
78
|
|
|
12.09
|
|
The Joint Lead Arrangers
|
|
|
79
|
|
|
12.10
|
|
Impaired Agent
|
|
|
79
|
|
|
12.11
|
|
Replacement of an Agent
|
|
|
79
|
|
|
12.12
|
|
Resignation by the Hermes Agent
|
|
|
80
|
|
|
|
|
|
SECTION 13. Benefit of Agreement
|
|
|
80
|
|
|
|
|
|
|
13.01
|
|
Assignments and Transfers by the Lenders
|
|
|
81
|
|
|
13.02
|
|
Assignment or Transfer Fee
|
|
|
82
|
|
|
13.03
|
|
Assignments and Transfers to Hermes or KfW
|
|
|
82
|
|
|
13.04
|
|
Limitation of Responsibility to Existing Lenders
|
|
|
82
|
|
|
13.05
|
|
[Intentionally Omitted]
|
|
|
83
|
|
|
13.06
|
|
Procedure and Conditions for Transfer
|
|
|
83
|
|
|
13.07
|
|
Procedure and Conditions for Assignment
|
|
|
84
|
|
|
13.08
|
|
Copy of Transfer Certificate or Assignment Agreement to Parent
|
|
|
85
|
|
|
13.09
|
|
Security over Lenders’ Rights
|
|
|
85
|
|
|
13.10
|
|
Assignment by a Credit Party
|
|
|
85
|
|
|
13.11
|
|
Lender Participations
|
|
|
85
|
|
|
13.12
|
|
Increased Costs
|
|
|
86
|
|
|
|
|
|
SECTION 14. Miscellaneous
|
|
|
86
|
|
|
|
|
|
|
14.01
|
|
Payment of Expenses, etc.
|
|
|
86
|
|
|
14.02
|
|
Right of Set-off
|
|
|
87
|
|
|
14.03
|
|
Notices
|
|
|
88
|
|
(iv)
|
|
|
|
|
|
|
|
|
14.04
|
|
No Waiver; Remedies Cumulative
|
|
|
88
|
|
|
14.05
|
|
Payments Pro Rata
|
|
|
89
|
|
|
14.06
|
|
Calculations; Computations
|
|
|
89
|
|
|
14.07
|
|
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
|
|
|
90
|
|
|
14.08
|
|
Counterparts
|
|
|
90
|
|
|
14.09
|
|
Effectiveness
|
|
|
91
|
|
|
14.10
|
|
Headings Descriptive
|
|
|
91
|
|
|
14.11
|
|
Amendment or Waiver; etc.
|
|
|
91
|
|
|
14.12
|
|
Survival
|
|
|
92
|
|
|
14.13
|
|
Domicile of Loans
|
|
|
92
|
|
|
14.14
|
|
Confidentiality
|
|
|
93
|
|
|
14.15
|
|
Register
|
|
|
93
|
|
|
14.16
|
|
Third Party Rights
|
|
|
94
|
|
|
14.17
|
|
Judgment Currency
|
|
|
94
|
|
|
14.18
|
|
Language
|
|
|
94
|
|
|
14.19
|
|
Waiver of Immunity
|
|
|
94
|
|
|
14.20
|
|
“Know Your Customer” Notice
|
|
|
95
|
|
|
14.21
|
|
Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
|
|
|
95
|
|
|
14.22
|
|
Partial Invalidity
|
|
|
96
|
|
|
|
|
|
SECTION 15. Parent Guaranty
|
|
|
96
|
|
|
|
|
|
|
15.01
|
|
Guaranty and Indemnity
|
|
|
96
|
|
|
15.02
|
|
Continuing Guaranty
|
|
|
96
|
|
|
15.03
|
|
Reinstatement
|
|
|
96
|
|
|
15.04
|
|
Waiver of Defenses
|
|
|
97
|
|
|
15.05
|
|
Guarantor Intent
|
|
|
97
|
|
|
15.06
|
|
Immediate Recourse
|
|
|
97
|
|
|
15.07
|
|
Appropriations
|
|
|
98
|
|
|
15.08
|
|
Deferral of Guarantor’s Rights
|
|
|
98
|
|
|
15.09
|
|
Additional Security
|
|
|
99
|
|
|
|
|
|
|
|
|
SCHEDULE 1.01(a)
|
|
-
|
|
Commitments
|
|
SCHEDULE 1.01(b)
|
|
-
|
|
Mandatory Costs
|
|
SCHEDULE 5.07
|
|
-
|
|
Notices, Acknowledgments and Consents
|
|
SCHEDULE 5.10
|
|
-
|
|
Initial Borrowing Date Opinions
|
|
SCHEDULE 6.10
|
|
-
|
|
Material Litigation
|
|
SCHEDULE 7.05
|
|
-
|
|
Delivery Date Opinions
|
|
SCHEDULE 8.03
|
|
-
|
|
Existing Agreements
|
|
SCHEDULE 8.12
|
|
-
|
|
Capitalization
|
|
SCHEDULE 8.13
|
|
-
|
|
Subsidiaries
|
|
SCHEDULE 8.19
|
|
-
|
|
Vessel
|
|
SCHEDULE 8.21
|
|
-
|
|
Approved Classification Societies
|
|
SCHEDULE 9.03
|
|
-
|
|
Required Insurances
|
|
SCHEDULE 10.01
|
|
-
|
|
Existing Liens
|
(v)
|
|
|
|
|
|
|
SCHEDULE 14.03A
|
|
-
|
|
Credit Party Addresses
|
|
SCHEDULE 14.03B
|
|
-
|
|
Lender Addresses
|
|
|
|
|
|
EXHIBIT A
|
|
-
|
|
Form of Notice of Borrowing
|
|
EXHIBIT B-1
|
|
-
|
|
Form of BankAssure Report
|
|
EXHIBIT B-2
|
|
-
|
|
Form of Insurance Broker Certificate
|
|
EXHIBIT C
|
|
-
|
|
Form of Interaction Agreement
|
|
EXHIBIT D
|
|
-
|
|
Form of Secretary’s Certificate
|
|
EXHIBIT E
|
|
-
|
|
Form of Transfer Certificate
|
|
EXHIBIT F
|
|
-
|
|
Form of Bermuda Share Charge
|
|
EXHIBIT G
|
|
-
|
|
Form of Assignment of Earnings
|
|
EXHIBIT H
|
|
-
|
|
Form of Assignment of Insurances
|
|
EXHIBIT I
|
|
-
|
|
Form of Deed of Covenants
|
|
EXHIBIT J
|
|
-
|
|
Form of Assignment of Contracts
|
|
EXHIBIT K
|
|
-
|
|
Form of Solvency Certificate
|
|
EXHIBIT L
|
|
-
|
|
Form of Assignment Agreement
|
|
EXHIBIT M
|
|
-
|
|
Form of Compliance Certificate
|
|
EXHIBIT N
|
|
-
|
|
Form of Intercreditor Agreement
|
|
EXHIBIT O
|
|
-
|
|
Form of Assignment of Management Agreements
|
|
EXHIBIT P
|
|
-
|
|
Form of Security Trust Deed
|
|
EXHIBIT Q
|
|
-
|
|
Form of Assignment of KfW Refund Guarantees
|
(vi)
THIS CREDIT AGREEMENT, is made by way of deed November 18, 2010, among NCL CORPORATION
LTD., a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”), BREAKAWAY ONE, LTD., a Bermuda company with its registered office as of the date
hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Borrower
”), the Lenders party hereto from time to time, KFW IPEX-BANK GMBH, as Facility Agent (in such capacity, the “
Facility Agent
”), as
Collateral Agent under the Security Documents (in such capacity, the “
Collateral Agent
”) and as CIRR Agent (in such capacity, the “
CIRR Agent
”), NORDEA BANK NORGE ASA, as Documentation Agent (in such capacity, the
“
Documentation Agent
”), COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent (in such capacity, the “
Hermes Agent
”), and each of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, DNB NOR BANK ASA, HSBC BANK PLC, KFW IPEX-BANK
GMBH and NORDEA BANK NORGE ASA, each in their capacity as joint lead arranger in respect of the credit facility provided for herein (together, the “
Joint Lead Arrangers
”). All capitalized terms used herein and defined in
Section 1 are used herein as therein defined.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a multi-draw term loan
credit facility in an aggregate principal amount of €529,846,154 pursuant to which Loans may be incurred to finance, in part, the construction and acquisition costs of the Vessel and the related Hermes Premium;
WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are willing to make available to the Borrower the
term loan facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1.
Definitions and Accounting Terms
.
1.01
Defined Terms
. As used in this Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms defined) and references to this Agreement or any other document (or to any specified provision of this Agreement or any other document) shall be construed as references to
this Agreement, that provision or that document as from time to time amended, restated, supplemented and/or novated:
“
Acceptable Bank
” means (a) a bank or financial institution which has a rating for its long-term unsecured and non
credit-enhanced debt obligations of A- or higher by S&P or A2 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency; or (b) any other bank or financial institution approved by each Agent.
“
Acceptable Flag Jurisdiction
” shall mean the Bahamas, Bermuda, Panama, the Marshall Islands, the United
States or such other flag jurisdiction as may be acceptable to the Required Lenders in their reasonable discretion.
“
Acquisition
” means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of
the Capital Stock of any Person or otherwise causing any Person to become a Subsidiary of a Borrower, or (c) a merger, amalgamation or consolidation or any other combination with another Person.
“
Adjusted Construction Price
” shall mean the sum of the Initial Construction Price of the Vessel and the total permitted
increases to the Initial Construction Price of the Vessel pursuant to Permitted Change Orders (it being understood that the Final Construction Price may exceed the Adjusted Construction Price).
“
Affiliate
” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person;
provided
,
however
, that for purposes of Section 10.05, an Affiliate of the Parent or any of its Subsidiaries, as applicable, shall include any Person that directly or
indirectly owns more than 10% of any class of the Capital Stock of the Parent or such Subsidiary, as applicable, and any officer or director of the Parent or such Subsidiary. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary
contained above, for purposes of Section 10.05, neither the Facility Agent, nor the Collateral Agent, nor the Joint Lead Arrangers nor any Lender (or any of their respective affiliates) shall be deemed to constitute an Affiliate of the Parent
or its Subsidiaries in connection with the Credit Documents or its dealings or arrangements relating thereto.
“
Affiliate Transaction
” shall have the meaning provided in Section 10.05.
“
Agent
” or “
Agents
” shall mean, individually and collectively, the Facility Agent, the Collateral
Agent, the Delegate Collateral Agent, the Hermes Agent, the Documentation Agent and the CIRR Agent.
“
Agreement
” shall mean this Credit Agreement, as modified, supplemented, amended, restated or novated from time to time.
“
Apollo
” shall mean Apollo Management, L.P., and its Affiliates.
“
Applicable Margin
” shall mean a percentage per annum equal to 1.60%.
“
Appraised Value
” of the Vessel at any time shall mean the average of the fair market value of the Vessel on an
individual charter free basis as set forth on the appraisals most recently delivered to, or obtained by, the Facility Agent prior to such time pursuant to Section 9.01(c).
“
Approved Appraisers
” shall mean Brax Shipping AS; Barry Rogliano Salles S.A., Paris; Clarksons, London; R.S. Platou
Shipbrokers, A.S., Oslo; and Fearnsale, a division of Astrup Fearnley AS, Oslo.
-2-
“
Approved Stock Exchange
” shall mean the New York Stock Exchange, NASDAQ or
such other stock exchange in the United States of America, the United Kingdom or Hong Kong as is approved in writing by the Facility Agent or, in each case, any successor thereto.
“
Assignment Agreement
” shall mean an Assignment Agreement substantially in the form of Exhibit L (appropriately
completed) or any other form agreed between the relevant assignor and assignee (and if required to be executed by the Borrower, the Borrower);
provided
that if such other form does not contain the undertaking set out in Clause 7 of Exhibit L
it shall not be a Creditor Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.
“
Assignment of Charters
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignment of Contracts
” shall have the meaning provided in Section 5.07.
“
Assignment of Earnings
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignment of Insurances
” shall have the meaning provided in the definition of
“Collateral and Guaranty Requirements”.
“
Assignment of KfW Refund Guarantees
” shall have the
meaning provided in Section 5.07.
“
Assignment of Management Agreements
” shall have the meaning provided
in the definition of “Collateral and Guaranty Requirements”.
“
Bankruptcy Code
” shall have the
meaning provided in Section 11.05(b).
“
Basel II
” shall mean the “International Convergence of
Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
“
Borrower
” shall have the meaning provided in the first paragraph of this Agreement.
“
Borrowing
” shall mean the borrowing of Loans from all the Lenders (other than any Lender which has not funded its share
of a Borrowing in accordance with this Agreement) having Commitments on a given date.
“
Borrowing Date
” shall
mean each date (including the Initial Borrowing Date) on which a Borrowing occurs as set forth in Section 2.02.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
-3-
“
Capital Stock
” means:
(1) in the case of a corporation, corporate stock or shares;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
“
Cash Balance
” shall mean, at any date of determination,
the unencumbered and otherwise unrestricted cash and Cash Equivalents of the NCLC Group.
“
Cash Equivalents
”
shall mean (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (
provided
that the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by any Person, (iii) repurchase obligations with a term of not more than 90 days for underlying
securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Person incorporated in the United States rated at least
A-1 or the equivalent thereof by S&P or at least B-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by any other Person, and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
“
CERCLA
” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601
et
seq.
“
Change of Control
” shall mean (x) at any time when the ordinary Capital Stock of the
Parent (or a parent company of the Parent in a Qualified IPO) is not listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Parent by way of a share issue pursuant to a public offering
on an Approved Stock Exchange, the Permitted Holders in the aggregate do not, directly or indirectly, control the Parent and beneficially own, directly or indirectly, at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent;
or (y) at any time following the listing of the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) on an Approved Stock Exchange:
(i) any Third Party:
-4-
|
|
(A)
|
owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Parent; or
|
|
|
(B)
|
has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the
Parent; and
|
at the same time as any of the events described in paragraphs (A) or (B) of this
definition have occurred and are continuing, the Permitted Holders in the aggregate do not, directly or indirectly, beneficially own at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or
(ii) the Parent (or such parent company of the Parent) ceases to be a listed company on an Approved Stock Exchange without the prior
written consent of the Required Lenders,
(and, for the purpose of Section 11.16 “control” of any company, limited partnership
or other legal entity (a “body corporate”) controlled by a Permitted Holder means that one or more members of a Permitted Holder in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body
corporate, whether through the ownership of more than 50% of the issued voting capital of that body corporate or by contract, trust or other arrangement).
“
CIRR Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
“
CIRR General Terms and Conditions
” shall mean the CIRR General Terms and Conditions for interest rate make-up in ship
financing schemes (May 12, 2009 edition).
“
Collateral
” shall mean all property (whether real or personal)
with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Share Charge Collateral, all Earnings and Insurance Collateral, the Construction Risk
Insurance, the Vessel, the Refund Guarantees, the Construction Contract and all cash and Cash Equivalents at any time delivered as collateral thereunder or as collateral required hereunder.
“
Collateral Agent
” shall have the meaning provided in the first paragraph of this agreement, and shall include any
successor thereto, acting as mortgagee, security trustee or collateral agent for the Secured Creditors pursuant to the Security Documents.
“
Collateral and Guaranty Requirements
” shall mean with respect to the Vessel, the requirement that:
(i)(A) the Borrower shall have duly authorized, executed and delivered an Assignment of Earnings substantially in the form of Exhibit G or otherwise reasonably acceptable to the Joint Lead Arrangers (as
modified, supplemented or amended from time to time, the “
Assignment of Earnings
”) and an Assignment of Insurances substantially in the form
-5-
of Exhibit H or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time, the “
Assignment of Insurances
”), in each
case (to the extent incorporated into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) with appropriate notices, acknowledgements and consents relating thereto and (B) the Borrower shall
(x) use its commercially reasonable efforts to obtain an Assignment of Charters substantially in the form of exhibit B to the Assignment of Earnings (as modified, supplemented or amended from time to time, the “
Assignment of
Charters
”) with (to the extent incorporated into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) appropriate notices, acknowledgements and consents relating thereto for any charter or similar
contract that has as of the execution date of such charter or similar contract a remaining term of 13 months or greater (including any renewal option) and (y) have obtained a subordination agreement from the charterparty for any Permitted
Chartering Arrangement that the Borrower has entered into with respect to the Vessel, and shall use commercially reasonable efforts to provide appropriate notices and consents related thereto, together covering all of the Borrower’s present and
future Earnings and Insurance Collateral, in each case together with:
(a) proper financing statements (Form
UCC-1 or the equivalent) fully prepared for filing in accordance with the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or give notice
to third parties of, as the case may be, the security interests purported to be created by the Assignment of Earnings and the Assignment of Insurances; and
(b) certified copies of lien search results (Form UCC-11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida,
together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully prepared for filing if required by applicable law to terminate for any financing statement which covers the Collateral
except to the extent evidencing Permitted Liens.
(ii) the Borrower shall have duly authorized, executed and delivered an
Assignment of Management Agreements in respect of the Management Agreements for the Vessel substantially in the form of Exhibit O or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time,
the “
Assignment of Management Agreements
”) and shall have obtained (or in the case of any Manager that is not a Subsidiary of the Parent, used commercially reasonable efforts to obtain) a Manager’s Undertakings for the Vessel;
(iii) the Borrower shall have duly authorized, executed and delivered, and caused to be registered in the appropriate vessel
registry a first priority mortgage and a deed of covenants (as modified, amended or supplemented from time to time in accordance with the terms thereof and hereof, and together with the Vessel Mortgage delivered pursuant to the definition of Flag
Jurisdiction Transfer, the “
Vessel Mortgage
”), substantially in the form of Exhibit I or otherwise reasonably acceptable to the Joint Lead Arrangers with respect to the Vessel, and the Vessel Mortgage shall be effective to create in
favor of the Collateral Agent a legal, valid and enforceable first priority security interest, in and Lien upon the Vessel, subject only to Permitted Liens;
-6-
(iv) all filings, deliveries of notices and other instruments and other actions by the
Credit Parties and/or the Collateral Agent necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve the security interests described in clauses (i) through and including (iii) above shall have been
duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Facility Agent shall have received each of the following:
(a) certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed
certificates and indicating) the registered ownership of the Vessel by the Borrower; and
(b) the results of
maritime registry searches with respect to the Vessel, indicating that the Vessel has been deleted from all new building registers and that there are no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted
Liens; and
(c) class certificates reasonably satisfactory to it from Det Norske Veritas or another
classification society listed on Schedule 8.21 hereto (or another internationally recognized classification society reasonably acceptable to the Facility Agent), indicating that the Vessel meets the criteria specified in Section 8.21; and
(d) certified copies of all Management Agreements; and
(e) certified copies of all ISM and ISPS Code documentation for the Vessel; and
(f) the Facility Agent shall have received a report, in substantially the form of Exhibit B-1 or otherwise reasonably
acceptable to the Facility Agent, from BankAssure or another firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained (or to be maintained) by the Credit Parties in respect of
the Vessel, together with a certificate in substantially the form of Exhibit B-2 or otherwise reasonably acceptable to the Facility Agent, from another broker certifying that such insurances (i) are placed with such insurance companies and/or
underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds and (ii) include the Required Insurance. In addition, the Borrower shall reimburse the Facility
Agent for the reasonable and documented costs of procuring customary mortgagee interest insurance and additional perils insurance in connection with the Vessel as contemplated by Section 9.03 (including Schedule 9.03).
-7-
“
Collateral Disposition
” shall mean (i) the sale, lease, transfer or
other disposition of the Vessel by the Borrower to any Person (it being understood that a Permitted Chartering Arrangement is not a Collateral Disposition) or the sale of 100% of the Capital Stock of the Borrower or (ii) any Event of Loss of
the Vessel.
“
Commitment
” shall mean, for each Lender, the amount denominated in Euro set forth opposite such
Lender’s name in Schedule 1.01(a) hereto as the same may be (x) reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 11 or (y) adjusted from time to time as a result of assignments and/or transfers to or from such
Lender pursuant to Section 2.11 or 13.
“
Commitment Letter
” shall have the meaning provided in
Section 14.09.
“
Commitment Termination Date
” shall mean December 23, 2013.
“
Commitment Commission
” shall have the meaning provided in Section 3.01(a).
“
Consolidated Debt Service
” shall mean, for any relevant period, the sum (without double counting), determined in
accordance with GAAP, of:
|
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(i)
|
the aggregate principal payable or paid during such period on any Indebtedness for Borrowed Money of any member of the NCLC Group, other than:
|
|
|
(a)
|
principal of any such Indebtedness for Borrowed Money prepaid at the option of the relevant member of the NCLC Group or by virtue of “cash sweep” or
“special liquidity” cash sweep provisions (or analogous provisions) in any debt facility of the NCLC Group;
|
|
|
(b)
|
principal of any such Indebtedness for Borrowed Money prepaid upon a sale or an Event of Loss of any vessel owned or leased under a capital lease by any member of the
NCLC Group; and
|
|
|
(c)
|
balloon payments of any such Indebtedness for Borrowed Money payable during such period (and for the purpose of this paragraph (c) a “balloon payment”
shall not include any scheduled repayment installment of such Indebtedness for Borrowed Money which forms part of the balloon);
|
|
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(ii)
|
Consolidated Interest Expense for such period;
|
|
|
(iii)
|
the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of the NCLC Group
(other than the Parent, or one of its wholly owned Subsidiaries) or any Dividends other than the tax distributions described in Section 10.03(ii) in each case paid during such period; and
|
-8-
|
|
(iv)
|
all rent under any capital lease obligations by which the Parent, or any consolidated Subsidiary is bound which are payable or paid during such period and the portion
of any debt discount that must be amortized in such period,
|
as calculated in accordance with GAAP and derived from the then
latest consolidated unaudited financial statements of the NCLC Group delivered to the Facility Agent in the case of any period ending at the end of any of the first three fiscal quarters of each fiscal year of the Parent and the then latest audited
consolidated financial statements (including all additional information and notes thereto) of the Parent and its consolidated Subsidiaries together with the auditors’ report delivered to the Facility Agent in the case of the final quarter of
each such fiscal year.
“
Consolidated EBITDA
” shall mean, for any relevant period, the aggregate of:
(i) Consolidated Net Income from the Parent’s operations for such period; and
(ii) the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses
from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for such period.
“
Consolidated Interest Expense
” shall mean, for any relevant period, the consolidated interest expense (excluding
capitalized interest) of the NCLC Group for such period.
“
Consolidated Net Income
” shall mean, for any
relevant period, the consolidated net income (or loss) of the NCLC Group for such period as determined in accordance with GAAP.
“
Construction Contract
” shall mean the Shipbuilding Contract (in relation to Hull No. S.678) for the Vessel, dated as of
24 September, 2010, among the Parent, the Borrower and the Yard, as such Shipbuilding Contract may be amended, modified or supplemented from time to time in accordance with the terms thereof and hereof.
“
Construction Risk Insurance
” shall mean any and all insurance policies related to the Construction Contract and the
construction of the Vessel.
“
Credit Documents
” shall mean this Agreement, Sections 7 and 8 of the Commitment
Letter, each Security Document, the Security Trust Deed, any Transfer Certificate, any Assignment Agreement, the Intercreditor Agreement, the Interaction Agreement and, after the execution and delivery thereof, each additional guaranty or additional
security document executed pursuant to Section 9.10.
“
Credit Document Obligations
” shall mean, except
to the extent consisting of obligations, liabilities or indebtedness with respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated
-9-
maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, principal, premium, interest, fees and indemnities (including, without
limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed in any such proceeding)) of each Credit Party to the Lender Creditors (
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned
obligations, liabilities and indebtedness shall arise only for such Lenders (in such capacity) in respect of Loans and/or Commitments), whether now existing or hereafter incurred under, arising out of, or in connection with this Agreement and the
other Credit Documents to which such Credit Party is a party (including, in the case of each Credit Party that is a Guarantor, all such obligations, liabilities and indebtedness of such Credit Party under the Parent Guaranty) and the due performance
and compliance by such Credit Party with all of the terms, conditions and agreements contained in this Agreement and in such other Credit Documents.
“
Credit Party
” shall mean the Borrower, the Parent and each Subsidiary of the Parent that owns a direct interest in the Borrower.
“
Default
” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event
of Default.
“
Defaulting Lender
” shall mean any Lender with respect to which a Lender Default is in effect.
“
Delegate Collateral Agent
” shall mean Deutsche Schiffsbank Aktiengesellschaft in its capacity as trustee
for the Secured Creditors with respect to the Trust Property Delegated (as defined in the Security Trust Deed) pursuant to the Security Trust Deed.
“
Delivery Date
” shall mean the date of delivery of the Vessel to the Borrower, which, as of the Effective Date, is scheduled to occur in April 2013.
“
Discharged Rights and Obligations
” shall have the meaning provided in Section 13.06(c).
“
Dispute
” shall have the meaning provided in Section 14.07(a).
“
Disqualified Stock
” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the
terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale),
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock of such Person, or
-10-
(3) is redeemable at the option of the holder thereof, in whole or in part
(other than solely as a result of a change of control or asset sale), in each case prior to 91 days after the Maturity Date;
provided
,
however
, that only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided
,
however
, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the
Parent in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided
,
further
, that any class of Capital Stock of such Person that by its terms
authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“
Disruption Event
” means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Agreement (or otherwise in order for the
transactions contemplated by the Credit Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this Agreement; or
(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the
treasury or payments operations of a party to this Agreement preventing such party, or any other party to this Agreement:
(i) from performing its payment obligations under the Credit Documents; or
(ii) from communicating with other parties to this Agreement in accordance with the terms of the Credit Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations are disrupted.
“
Dividend
” shall mean, with respect to any Person, that such Person or any Subsidiary of such Person has declared or
paid a dividend or returned any equity capital to its stockholders, partners or members or the holders of options or warrants issued by such Person with respect to its Capital Stock or membership interests or authorized or made any other
distribution, payment or delivery of property (other than common stock or the right to purchase any of such stock of such Person) or cash to its stockholders, partners or members or the holders of options or warrants issued by such Person with
respect to its Capital Stock or membership interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its Capital Stock or any other Capital Stock outstanding on
or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the Capital Stock or any other Equity
-11-
Interests of such Person outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests). Without
limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any
similar plans or setting aside of any funds for the foregoing purposes.
“
Documentation Agent
” shall have the
meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
“
Dollars
” and the sign “
$
” shall each mean lawful money of the United States.
“
Dollar Equivalent
” shall mean, with respect to the Euro denominated Commitments being utilized on a Borrowing Date, the
amount calculated by applying (x) in the event that the Borrower and/or the Parent have entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be partially or wholly financed by the Loans to be disbursed
on such Borrowing Date, the EUR/USD weighted average rate with respect to such Borrowing Date (i) as notified by the Borrower to the Facility Agent in the Borrowing Notice at least three Business Days prior to the relevant Borrowing Date,
(ii) which EUR/USD weighted average rate for any particular set of Earmarked Foreign Exchange Arrangements shall take account of all applicable foreign exchange spot, forward and derivative arrangements, including collars, options and the like,
entered into in respect of such Borrowing Date and (iii) for which the Borrower has provided evidence to the Facility Agent to determine which foreign exchange arrangements (including spot transactions) will be the Earmarked Foreign Exchange
Arrangements that shall apply to such Borrowing Date and (y) in the event that the Borrower and/or the Parent have not entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be partially or wholly funded
by the Loans to be disbursed on such Borrowing Date, the Spot Rate applicable to such Borrowing Date.
“
Dormant
Subsidiary
” means a Subsidiary that owns assets in an amount equal to no more than $5,000,000 or is dormant or otherwise inactive.
“
Earmarked Foreign Exchange Arrangements
” shall mean the Euro/Dollar foreign exchange arranged by the Borrower and/or the Parent in connection with an installment payment to be partially
or wholly financed by the Loans to be disbursed on the date on which such installment payment is to be made.
“
Earnings and Insurance Collateral
” shall mean all “Earnings Collateral” and “Insurance Collateral”,
as the case may be, as defined in the respective Assignment of Earnings and the Assignment of Insurances.
“
Effective
Date
” has the meaning specified in Section 14.09.
“
Eligible Transferee
” shall mean and include
a commercial bank, insurance company, financial institution, fund or other Person which regularly purchases interests in loans or extensions of credit of the types made pursuant to this Agreement.
-12-
“
Environmental Approvals
” shall have the meaning provided in
Section 8.17(b).
“
Environmental Claims
” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter,
“
Claims
”), including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the
environment due to the presence of Hazardous Materials.
“
Environmental Law
” shall mean any applicable
Federal, state, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, to the extent binding on the Parent or any of its Subsidiaries, relating to the environment, and/or Hazardous Materials,
including, without limitation, CERCLA; OPA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et
seq.
; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et
seq.
; the Occupational
Safety and Health Act, 29 U.S.C. § 651
et
seq.
(to the extent it regulates occupational exposure to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“
Environmental Release
” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migration into the environment.
“
Equity Interests
”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“
Euro
” and the sign “
€
” shall each mean single currency in the member states of the European
Communities that adopt or have adopted the Euro as its lawful currency under the legislation of the European Union for European Monetary Union.
“
Eurodollar Rate
” shall mean with respect to each Interest Period for a Loan, the offered rate (rounded upward to the nearest 1/100 of 1%) for deposits of Dollars for a period equivalent
to such period at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of such period as is displayed on Reuters LIBOR 01 Page (or such other service as may be nominated by the British Bankers’ Association as the
information vendor for displaying the London Interbank Offered Rates of major banks in the London Interbank Market) (the “
Screen Rate
”),
provided
that if on such date no such rate is so displayed, the Eurodollar Rate for such
period shall be the arithmetic average (rounded upward to the nearest 1/100 of 1%) of the rate quoted to the Facility Agent by the Reference Banks for deposits of Dollars in an amount approximately equal to the amount in relation to which the
Eurodollar Rate is to be
-13-
determined for a period equivalent to such applicable Interest Period by the prime banks in the London interbank Eurodollar market at or about 11:00 A.M. (Frankfurt time) on the second Business
Day before the first day of such period, in each case rounded upward to the nearest 1/100 of 1%.
“
Event of
Default
” shall have the meaning provided in Section 11.
“
Event of Loss
” shall mean any of the
following events: (x) the actual or constructive total loss of the Vessel or the agreed or compromised total loss of the Vessel; or (y) the capture, condemnation, confiscation, requisition (but excluding any requisition for hire by or on
behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency), purchase, seizure or forfeiture of, or any taking of title to, the
Vessel. An Event of Loss shall be deemed to have occurred: (i) in the event of an actual loss of the Vessel, at the time and on the date of such loss or if such time and date are not known at noon Greenwich Mean Time on the date which the
Vessel was last heard from; (ii) in the event of damage which results in a constructive or compromised or arranged total loss of the Vessel, at the time and on the date on which notice claiming the loss of the Vessel is given to the insurers;
or (iii) in the case of an event referred to in clause (y) above, at the time and on the date on which such event is expressed to take effect by the Person making the same. Notwithstanding the foregoing, if the Vessel shall have been
returned to the Borrower or any Subsidiary of the Borrower following any event referred to in clause (y) above prior to the date upon which payment is required to be made under Section 4.02(b) hereof, no Event of Loss shall be deemed to
have occurred by reason of such event so long as the requirements set forth in Section 9.10 have been satisfied.
“
Excluded Taxes
” shall have the meaning provided in Section 4.04(a).
“
Existing Lender
” shall have the meaning provided in Section 13.01.
“
Facility Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any
successor thereto.
“
Facility Office
” means (a) in respect of a Lender, the office or offices notified
by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations
under this Agreement; or (b) in respect of any other Lender Creditor, the office in the jurisdiction in which it is resident for tax purposes.
“
Final Construction Price
” shall mean the actual final construction price of the Vessel.
“
Flag Jurisdiction Transfer
” shall mean the transfer of the registration and flag of the Vessel from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction,
provided
that the following conditions are satisfied with respect to such transfer:
(i) On each Flag
Jurisdiction Transfer Date, the Borrower shall have duly authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry a Vessel Mortgage that is reasonably satisfactory in form and substance to the
-14-
Facility Agent with respect to the Vessel and such Vessel Mortgage shall be effective to create in favor of the Collateral Agent and/or the Lenders a legal, valid and enforceable first priority
security interest, in and lien upon the Vessel, subject only to Permitted Liens. All filings, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve such security
interests shall have been duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent.
(ii) On each Flag Jurisdiction Transfer Date, to the extent that any Security Documents are released or discharged
pursuant to Section 14.21(b), the Borrower shall have duly authorized, executed and delivered corresponding Security Documents in favor of the Collateral Agent for the new Acceptable Flag Jurisdiction.
(iii) On each Flag Jurisdiction Transfer Date, the Facility Agent shall have received from counsel, an opinion addressed
to the Facility Agent and each of the Lenders and dated such Flag Jurisdiction Transfer Date, which shall (x) be in form and substance reasonably acceptable to the Facility Agent and (y) cover the recordation of the security interests
granted pursuant to the Vessel Mortgage to be delivered on such date and such other matters incident thereto as the Facility Agent may reasonably request.
(iv) On each Flag Jurisdiction Transfer Date:
(A) The Facility
Agent shall have received (x) certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of the Vessel transferred on such date by the
Borrower and (y) the results of maritime registry searches with respect to the Vessel transferred on such date, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens.
(B) The Facility Agent shall have received a report, in form and scope reasonably satisfactory to the Facility Agent, from
a firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained by the Credit Party in respect of the Vessel transferred on such date, together with a certificate from another
broker certifying that such insurances (i) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for
the protection of the Facility Agent and/or the Lenders as mortgagee and (ii) conform with the Required Insurance applicable to the Vessel.
(v) On or prior to each Flag Jurisdiction Transfer Date, the Facility Agent shall have received a certificate, dated the Flag Jurisdiction Transfer Date, signed by any one of the chairman of the board,
the president, any vice president, the treasurer or an authorized manager, member, general partner, officer or attorney-in-fact of the Borrower, certifying that (A) all necessary governmental (domestic and foreign) and third party approvals
and/or consents in connection with the Flag Jurisdiction Transfer being
-15-
consummated on such date and otherwise referred to herein shall have been obtained and remain in effect or that no such approvals and/or consents are required, (B) there exists no judgment,
order, injunction or other restraint prohibiting or imposing materially adverse conditions upon such Flag Jurisdiction Transfer or the other related transactions contemplated by this Agreement and (C) copies of resolutions approving the Flag
Jurisdiction Transfer of the Borrower and any other related matters the Facility Agent may reasonably request.
(vi) On each Flag Jurisdiction Transfer Date, the Collateral and Guaranty Requirements for the Transferred Collateral
Vessel shall have been satisfied or waived by the Facility Agent for a specific period of time.
“
Flag Jurisdiction
Transfer Date
” shall mean the date on which a Flag Jurisdiction Transfer occurs.
“
Free Liquidity
”
shall mean, at any date of determination, the aggregate of the Cash Balance and any Commitments under this Agreement or any other amounts available for drawing under other revolving or other credit facilities of the NCLC Group, which remain undrawn,
could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six months.
“
GAAP
” shall have the meaning provided in Section 14.06(a).
“
Grace Period
” shall have the meaning provided in Section 11.05(c).
“
Guarantor
” shall mean Parent.
“
Hazardous Materials
” shall mean: (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,”
or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under
Environmental Laws.
“
Hermes
” shall mean the Federal Republic of Germany represented by the Federal Ministry
of Economics and Technology (
Bundesministerium für Wirtschaft und Technologie
) represented by Euler Hermes Kreditversicherungs-AG and PriceWaterhouseCoopers Wirtschaftsprüfungsgesellschaft AG.
“
Hermes Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor
thereto, acting as attorney-in-fact for the Lenders with respect to the Hermes Cover to the extent described in this Agreement.
-16-
“
Hermes Cover
” shall mean the export credit guarantee
(
Exportkreditgarantie
) on the terms of Hermes’ Declaration of Guarantee (
Gewährleistungs-Erklärung
) for [*] of the principal amount of the Loans and any interests and secondary financing costs of the Federal Republic of
Germany acting through Euler Hermes Kreditversicherungs-AG for the period of the Loans on the terms and conditions applied for by the Lenders, and shall include any successor thereto (it being understood that the Hermes Cover shall be issued on the
basis of Hermes’ applicable Hermes guidelines (
Richtlinien
) and general terms and conditions (
Allgemeine Bedingungen
)).
“
Hermes Insurance Premium
” shall mean the amount payable in Euro by the Borrower to Hermes through the Hermes Agent in respect of the Hermes Cover, which shall not exceed [*].
“
Hermes Issuing Fees
” shall mean the [*] payable in Euro by the Borrower to Hermes through the Hermes Agent by way of
handling fees in respect of the Hermes Cover.
“
Hermes Premium
” shall mean the aggregate of the Hermes
Issuing Fees and the Hermes Insurance Premium.
“
Impaired Agent
” shall mean an Agent at any time when:
|
|
(i)
|
it has failed to make (or has notified a party to this Agreement that it will not make) a payment required to be made by it under the Credit Documents by the due date
for payment;
|
|
|
(ii)
|
such Agent otherwise rescinds or repudiates a Credit Document;
|
|
|
(iii)
|
(if such Agent is also a Lender) it is a Defaulting Lender; or
|
|
|
(iv)
|
an Insolvency Event has occurred and is continuing with respect to such Agent
|
unless, in the case of paragraph (i) above: (a) its failure to pay is caused by administrative or technical error or a Disruption Event, and payment is made within five Business Days of its due
date; or (b) such Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
“
Indebtedness
” shall mean any obligation for the payment or repayment of money, whether as principal or as surety and
whether present or future, actual or contingent including, without limitation, pursuant to an Interest Rate Protection Agreement or Other Hedging Agreement.
“
Indebtedness for Borrowed Money
” shall mean Indebtedness (whether present or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of:
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(i)
|
moneys borrowed or raised;
|
-17-
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(ii)
|
the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing);
|
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|
(iii)
|
the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases;
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(iv)
|
the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of 180 days;
|
|
|
(v)
|
all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and
|
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(vi)
|
(without double counting) any guarantee of Indebtedness falling within paragraphs (i) to (v) above;
|
provided
that the following shall not constitute Indebtedness for Borrowed Money:
|
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(a)
|
loans and advances made by other members of the NCLC Group which are subordinated to the rights of the Lenders;
|
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|
(b)
|
loans and advances made by any shareholder of the Parent which are subordinated to the rights of the Lenders on terms reasonably satisfactory to the Facility Agent; and
|
|
|
(c)
|
any liabilities of the Parent or any other member of the NCLC Group under any Interest Rate Protection Agreement or any Other Hedging Agreement or other derivative
transactions of a non-speculative nature.
|
“
Information
” shall have the meaning provided in
Section 8.10(a).
“
Initial Borrowing Date
” shall mean the date occurring on or after the Effective Date
on which the initial Borrowing of Loans hereunder occurs, which date shall coincide with the date of payment of the first installment of the Initial Construction Price for the Vessel under the Construction Contract.
“
Initial Construction Price
” shall mean an amount of up to €615,000,000 for the construction of the Vessel pursuant
to the Construction Contract, payable by the Borrower to the Yard through the four installments of the Initial Contract Price referred to in Article 8, Clauses 2.1(i) through and including (iv) of the
Construction Contract (each, a “
Pre-delivery Installment
”) and the installment of the Initial Contract Price referred to in Article 8, Clause 2.1(v) of the Construction Contract.
“
Insolvency Event
” in relation to any of the parties to this Agreement shall mean that such party:
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|
(i)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
-18-
|
|
(ii)
|
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
|
(iii)
|
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
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(iv)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it
in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
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|
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(v)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a
person or entity not described in paragraph (iv) above and (a) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or (b) is not dismissed,
discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
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(vi)
|
has exercised in respect of it one or more of the stabilization powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency
proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
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|
|
(vii)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
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|
|
(viii)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets;
|
|
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(ix)
|
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
-19-
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|
(x)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in
paragraphs (i) to (ix) above; or
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|
|
(xi)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
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“
Interaction Agreement
” shall mean the interaction agreement executed by,
inter
alia
(i) each Lender
that elects to become a Refinanced Bank, (ii) KfW as CIRR mandatary, and (iii) the CIRR Agent substantially in the form of Exhibit C.
“
Intercreditor Agreement
” shall mean the Intercreditor Deed executed by,
inter
alia
, (i) each Lender, each other Secured Creditor, the Collateral Agent, the
Documentation Agent and the Hermes Agent, (ii) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent, and the borrower under the Jade Credit Facility, (iii) each lender, each other
secured creditor, the collateral agent, the documentation agent and the Hermes agent under the Jewel Credit Facility and (iv) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by
the Borrower and the Guarantor substantially in the form of Exhibit N.
“
Interest Determination Date
” shall
mean, with respect to any Loan, the second Business Day prior to the commencement of any Interest Period relating to such Loan.
“
Interest Period
” shall have the meaning provided in Section 2.07.
“
Interest Rate Protection Agreement
” shall mean any interest rate swap agreement, interest rate cap agreement, interest
collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliate, and the Parent and/or the Borrower
in relation to the Credit Document Obligations of the Borrower under this Agreement.
“
Investments
” shall
have the meaning provided in Section 10.04.
“
Jade Credit Facility
” shall mean the delayed-draw term
loan facility (in a maximum amount not to exceed the sum of the commitments thereunder and under the Jewel Credit Facility on the Effective Date), dated as of the date hereof, among Pride of Hawaii, LLC, as borrower, the Parent, the lenders from
time to time party thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent, which shall (i) be secured by the Norwegian Jade vessel and (ii) indirectly finance, in part, the construction and
acquisition costs of the Vessel.
“
Jewel Credit Facility
” shall mean the delayed-draw term loan facility (in
a maximum amount not to exceed the sum of the commitments thereunder and under the Jade Credit Facility on the Effective Date), dated as of the date hereof, among Norwegian Jewel Limited, as borrower, the Parent, the lenders from time to time party
thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent, which shall (i) be secured by the Norwegian Jewel vessel and (ii) indirectly finance, in part, the construction and acquisition costs of the
Vessel.
-20-
“
Joint Lead Arrangers
” shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
“
KfW
” shall mean KfW in its capacity
as refinancing bank with respect to the KfW Refinancing.
“
KfW Refinancing
” shall mean the refinancing of the
respective loans of the Refinanced Banks hereunder with KfW pursuant to the CIRR General Terms and Conditions, as modified by the parties to the KfW Refinancing pursuant to,
inter
alia
, the Interaction Agreement.
“
Lender
” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person which becomes a
“
Lender
” hereunder pursuant to Section 13.
“
Lender Creditors
” shall mean the Lenders
holding from time to time outstanding Loans and/or Commitments and the Agents, each in their respective capacities.
“
Lender Default
” shall mean, as to any Lender, (i) the wrongful refusal (which has not been retracted) of such
Lender or the failure of such Lender to make available its portion of any Borrowing, unless such failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three Business Days of its due date;
(ii) such Lender having been deemed insolvent or having become the subject of a takeover by a regulatory authority or with respect to which an Insolvency Event has occurred and is continuing; (iii) such Lender having notified the Facility
Agent and/or any Credit Party (x) that it does not intend to comply with its obligations under Section 2.01 in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under such Section or
(y) of the events described in preceding clause (ii); or (iv) such Lender not being in compliance with its refinancing obligations owed to KfW under its respective Refinancing Agreement or the Interaction Agreement.
“
Lien
” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing);
provided
that in no event shall an operating lease be deemed to constitute a Lien.
“
Lim Family
” shall mean:
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|
(i)
|
the late Tan Sri Lim Goh Tong;
|
|
|
(iii)
|
his direct lineal descendants;
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-21-
|
|
(iv)
|
the personal estate of any of the above persons; and
|
|
|
(v)
|
any trust created for the benefit of one or more of the above persons and their estates.
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“
Loan
” shall have the meaning provided in Section 2.01.
“
Management Agreements
” shall mean any agreements entered into by the Borrower with the Manager or such other commercial
manager and/or a technical manager with respect to the management of the Vessel, in each case which agreements and manager shall be reasonably acceptable to the Facility Agent (it being understood that NCL (Bahamas) Ltd. is acceptable and the form
of management agreement attached as Annex A to Exhibit O is acceptable).
“
Manager
” shall mean the company
providing commercial and technical management and crewing services for the Vessel pursuant to the Management Agreements, which is contemplated to be, as of the Delivery Date, NCL (Bahamas) Ltd., a company organized and existing under the laws of
Bermuda.
“
Manager’s Undertakings
” shall mean the undertakings, provided by the Manager respecting the
Vessel, including,
inter alia
, a statement satisfactory to the Facility Agent that any lien in favor of the Manager respecting the Vessel is subject and subordinate to the Vessel Mortgage in substantially the form attached to the Assignment
of Management Agreements or otherwise reasonably satisfactory to the Facility Agent.
“
Mandatory Costs
” means
the percentage rate per annum calculated in accordance with
Schedule 1.01(b)
.
“
Market Disruption
Event
” shall mean:
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|
(i)
|
at or about noon on the Interest Determination Date for the relevant Interest Period the Screen Rate is not available and none or only one of the Lenders supplies a
rate to the Facility Agent to determine the Eurodollar Rate for the relevant Interest Period; or
|
|
|
(ii)
|
before 5:00 P.M. Frankfurt time on the Interest Determination Date for the relevant Interest Period, the Facility Agent receives notifications from Lenders the sum
of whose Commitments and/or outstanding Loans at such time equal at least 50% of the sum of the Total Commitments and/or aggregate outstanding Loans of the Lenders at such time that (x) the cost to such Lenders of obtaining matching deposits in
the London interbank Eurodollar market for the relevant Interest Period would be in excess of the Eurodollar Rate for such Interest Period or (y) such Lenders are unable to obtain funding in the London interbank Eurodollar market.
|
“
Material Adverse Effect
” shall mean the occurrence of anything since June 30, 2010 which
has had or would reasonably be expected to have a material adverse effect on (x) the property, assets, business, operations, liabilities, or condition (financial or otherwise) of the
-22-
Parent and its subsidiaries taken as a whole, (y) the consummation of the transactions hereunder, the acquisition of the Vessel and the Construction Contract, or (z) the rights or
remedies of the Lenders, or the ability of the Parent and its relevant Subsidiaries to perform their obligations owed to the Lenders and the Agents under this Agreement.
“
Materials of Environmental Concern
” shall have the meaning provided in Section 8.17(a).
“
Maturity Date
” shall mean the twelfth anniversary of the Borrowing Date in relation to the Delivery Date.
“
Moody’s
” shall mean Moody’s Investors Service, Inc. and its successors.
“
NCLC Fleet
” shall mean the vessels owned by the companies in the NCLC Group.
“
NCLC Group
” shall mean the Parent and its Subsidiaries.
“
New Lender
” shall mean a Person who has been assigned the rights or transferred the rights and obligations of an
Existing Lender, as the case may be, pursuant to the provisions of Section 13.
“
Non-Defaulting Lender
”
shall mean and include each Lender other than a Defaulting Lender.
“
Notice of Borrowing
” shall have the
meaning provided in Section 2.03.
“
Notice Office
” shall mean (x) in the case of the Facility
Agent, the office of the Facility Agent located at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, Attention: Ship Finance, X2a4, Claudia Wenzel, fax: +49 69 7431 2944, email: claudia.wenzel@kfw.de or such other office as the Facility
Agent may hereafter designate in writing as such to the other parties hereto and (y) in the case of the Hermes Agent, the office of the Hermes Agent located at Kaiserplatz / Kaiserstr. 16, D-60311 Frankfurt am Main, Germany, Attention:
Corporate Banking, Structured Export & Trade Finance, Klaus-Dieter Schmedding, fax: +49 69 136 23742, email Klaus-dieter.schmedding@commerzbank.com (with an additional copy to exportfinance@commerzbank.com) or such other office as the
Hermes Agent may hereafter designate in writing as such to the other parties hereto.
“
OPA
” shall mean the
Oil Pollution Act of 1990, as amended, 33 U.S.C. § 2701
et seq.
“
Other Creditors
” shall mean any
Lender or any Affiliate thereof and their successors, transferees and assigns if any (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason), together with such Lender’s or Affiliate’s successors,
transferees and assigns, with which the Parent and/or the Borrower enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
-23-
“
Other Export Credit Documents
” shall mean the “Credit Documents”
as defined in the Other Export Credit Facility.
“
Other Export Credit Facility
” shall mean the delayed-draw
term loan facility, dated as of the date hereof, among Breakaway Two, Ltd., as borrower, the Parent, the lenders from time to time party thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent, which shall
finance, in part, the construction and acquisition costs of the post-panamax luxury passenger cruise vessel with the provisional hull number S.692 to be constructed by the Yard.
“
Other Hedging Agreement
” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or
other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliates, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this
Agreement and designed to protect against the fluctuations in currency or commodity values.
“
Other
Obligations
” shall mean the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding) owing by any Credit Party to the Other Creditors under, or with respect to, any Interest Rate Protection Agreement or Other Hedging Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained therein.
“
Parent
” shall have the meaning provided in the first paragraph of this Agreement.
“
Parent Guaranty
” shall mean the guaranty of the Parent pursuant to Section 15.
“
PATRIOT Act
” shall have the meaning provided in Section 14.09.
“
Payment Date
” shall mean the last Business Day of each December, March, June and September, commencing with December,
2010.
“
Payment Office
” shall mean the office of the Facility Agent located at Palmengartenstrasse 5-9, 60325
Frankfurt am Main, Germany, or such other office as the Facility Agent may hereafter designate in writing as such to the other parties hereto.
“
Permitted Change Orders
” shall mean change orders and similar arrangements under the Construction Contract which increase the Initial Construction Price to the extent that the aggregate
amount of such increases does not exceed [*] of the Initial Construction Price (it being understood that the actual amount of change orders and similar arrangements may exceed [*] of the Initial Construction Price).
-24-
“
Permitted Chartering Arrangements
” shall mean:
|
|
(i)
|
any charter or other form of deployment (other than a demise or bareboat charter) of the Vessel made between members of the NCLC Group;
|
|
|
(ii)
|
any demise or bareboat charter of the Vessel made between members of the NCLC Group provided that (a) each of the Borrower and the charterer assigns the benefit of
any such charter or sub-charter to the Collateral Agent, (b) each of the Borrower and the charterer assigns its interest in the insurances and earnings in respect of the Vessel to the Collateral Agent, and (c) the charterer agrees to
subordinate its interests in the Vessel to the interests of the Collateral Agent as mortgagee of the Vessel, all on terms and conditions reasonably acceptable to the Collateral Agent;
|
|
|
(iii)
|
any charter or other form of deployment of the Vessel to a charterer that is not a member of the NCLC Group provided that no such charter or deployment shall be made
(a) on a demise or bareboat basis, or (b) for a period which, with the exercise of any options for extension, could be for longer than 13 months, or (c) other than at or about market rate at the time when the charter or deployment is
fixed; and
|
|
|
(iv)
|
any charter or other form of deployment in respect of the Vessel entered into after the Effective Date and which is permissible under the provisions of any financing
documents relating to the Vessel.
|
“
Permitted Holders
” shall mean (i) the Lim Family
(together or individually) and (ii) Apollo and any Person directly controlled by Apollo.
“
Permitted
Liens
” shall have the meaning provided in Section 10.01.
“
Person
” shall mean any individual,
partnership, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision, department or instrumentality thereof.
“
Pledgor
” shall mean NCL Corporation Ltd. or any direct or indirect Subsidiary of the Parent which directly owns any of the Capital Stock of the Borrower.
“
Pre-delivery Installment
” shall have the meaning provided in the definition of “
Initial Construction
Price
”.
“
Pro Rata Share
” shall have the definition provided in Section 4.05.
“
Projections
” shall mean any projections and any forward-looking statements (including statements with respect to booked
business) of the NCLC Group furnished to the Lenders or the Facility Agent by or on behalf of any member of the NCLC Group prior to the Effective Date.
“
Qualified IPO
” means an initial public offering of the Parent or a parent company of the Parent in either case on an Approved Stock Exchange resulting in at least [*] of equity
(x) in the case of an initial public offering by a parent company of the Parent, being contributed to the Parent or (y) in the case of an initial public offering by the Parent, sold by the Parent.
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“
Reference Banks
” shall mean each Joint Lead Arranger.
“
Refinancing Agreement
” shall mean each refinancing agreement in respect of the KfW Refinancing.
“
Refinanced Bank
” shall mean each Lender participating in the KfW Refinancing.
“
Refund Guarantee
” shall mean a refund guarantee arranged by the Yard in respect of a Pre-delivery Installment and
provided by one or more financial institutions contemplated by the Construction Contract, or by other financial institutions reasonably satisfactory to the Joint Lead Arrangers, as credit support for the Yard’s obligations thereunder.
“
Register
” shall have the meaning provided in Section 14.15.
“
Relevant Obligations
” shall have the meaning provided in Section 13.07(c)(ii).
“
Replaced Lender
” shall have the meaning provided in Section 2.11.
“
Replacement Lender
” shall have the meaning provided in Section 2.11.
“
Representative
” shall have the meaning provided in Section 4.05(d).
“
Required Insurance
” shall have the meaning provided in Section 9.03.
“
Required Lenders
” shall mean, at any time, Non-Defaulting Lenders, the sum of whose outstanding
Commitments and/or principal amount of Loans at such time represent an amount greater than 66-
2
/
3
% of the sum of the Total Commitment (
less
the aggregate Commitments of all Defaulting Lenders at such time) and the aggregate principal amount of outstanding Loans (less the amount of outstanding
Loans of all Defaulting Lenders at such time).
“
S&P
” shall mean Standard & Poor’s
Rating Services, a division of the McGraw-Hill Companies, Inc., and its successors.
“
Scheduled Repayment
”
shall have the meaning provided in Section 4.02(a).
“
Screen Rate
” shall have the meaning specified in
the definition of Eurodollar Rate.
“
Secured Creditors
” shall mean the “Secured Creditors” as
defined in the Security Documents.
“
Secured Obligations
” shall mean (i) the Credit Document
Obligations, (ii) the Other Obligations, (iii) any and all sums advanced by any Agent in order to preserve the Collateral or preserve the Collateral Agent’s security interest in the Collateral on behalf of the Lenders, (iv) in
the event of any proceeding for the collection or enforcement of any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after
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an Event of Default shall have occurred and be continuing, the expenses in connection with retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Collateral Agent of its rights hereunder on behalf of the Lenders, together with reasonable attorneys’ fees and court costs, and (v) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under the Security Documents.
“
Security Documents
” shall mean, as
applicable, the Assignment of Contracts, the Assignment of Earnings, the Assignment of Charters, the Assignment of Insurances, the Assignment of Management Agreements, the Assignment of KfW Refund Guarantees, the Share Charge, the Vessel Mortgage,
the Deed of Covenants, and, after the execution thereof, each additional security document executed pursuant to Section 9.10 and/or Section 12.01(b).
“
Security Trust Deed
” shall mean the Security Trust Deed executed by,
inter
alia
, the Borrower, the Guarantor, the Collateral Agent, the Facility Agent, the Original
Secured Creditors (as defined therein) and the Delegate Collateral Agent, and shall be substantially in the form of Exhibit P or otherwise reasonably acceptable to the Facility Agent.
“
Share Charge
” shall have the meaning provided in Section 5.06.
“
Share Charge Collateral
” shall mean all “Collateral” as defined in the Share Charge.
“
Specified Requirements
” shall mean the requirements set forth in clauses (i)(A) and (i)(B) (excluding, for the
avoidance of doubt, clauses (i)(a) or (i)(b)), (iii), (v)(c) and (v)(f) of the definition of “Collateral and Guaranty Requirements.”
“
Spot Rate
” shall mean the spot exchange rate quoted by the Facility Agent equal to the weighted average of the rates on the actual transactions of the Facility Agent on
the date two Business Days prior to the date of determination thereof (acting reasonably), which spot exchange rate shall be final and conclusive absent manifest error.
“
Subsidiary
” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by
such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50%
Equity Interest at the time.
“
Supervision Agreements
” shall mean any agreements (if any) entered or to be
entered into between the Parent, as applicable, the Borrower and a Supervisor providing for the construction supervision of the Vessel, the terms and conditions of which shall be in form and substance reasonably satisfactory to the Facility Agent.
“
Supervisor
” shall have the meaning provided in the Construction Contract.
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“
Tax Benefit
” shall have the meaning provided in Section 4.04(c).
“
Taxes
” and “
Taxation
” shall have the meaning provided in Section 4.04(a).
“
Term Loan Credit Documents
” shall mean the “Credit Documents” as defined in Term Loan Facilities.
“
Term Loan Facilities
” shall mean collectively, the Jewel Credit Facility and the Jade Credit Facility.
“
Test Period
” shall mean each period of four consecutive fiscal quarters then last ended, in each case taken as one
accounting period.
“
Third Party
” shall mean any Person or group of Persons acting in concert who or which
does not include a member of the Lim Family or Apollo.
“
Total Capitalization
” shall mean, at any date of
determination, the Total Net Funded Debt
plus
the consolidated stockholders’ equity of the NCLC Group at such date determined in accordance with GAAP and derived from the then latest unaudited and consolidated financial statements of the
NCLC Group delivered to the Facility Agent in the case of the first three quarters of each fiscal year and the then latest audited consolidated financial statements of the NCLC Group delivered to the Facility Agent in the case of each fiscal year;
provided
it is understood that the effect of any impairment of intangible assets shall be added back to stockholders’ equity.
“
Total Commitment
” shall mean, at any time, the sum of the Commitments of the Lenders at such time. On the Effective Date, the Total Commitments equal €529,846,154.
“
Total Net Funded Debt
” shall mean, as at any relevant date:
|
|
(i)
|
Indebtedness for Borrowed Money of the NCLC Group on a consolidated basis; and
|
|
|
(ii)
|
the amount of any Indebtedness for Borrowed Money of any person which is not a member of the NCLC Group but which is guaranteed by a member of the NCLC Group as at such
date;
|
less
an amount equal to any Cash Balance as at such date;
provided
that any Commitments and
other amounts available for drawing under other revolving or other credit facilities of the NCLC Group which remain undrawn shall not be counted as cash or indebtedness for the purposes of this Agreement.
“
Transaction
” shall mean collectively (i) the execution, delivery and performance by each Credit Party of the
Credit Documents to which it is a party, the incurrence of Loans on each Borrowing Date and the use of proceeds thereof, (ii) the execution, delivery and performance by the relevant credit parties party to the Other Export Credit Documents to
which they are a party, the incurrence of the loans thereunder and the use of proceeds thereof, (iii) the execution, delivery and performance by the relevant credit parties party to the Term Loan Credit Documents to which they are a party, the
incurrence of the loans thereunder and the use of proceeds thereof and (iv) the payment of all fees and expenses in connection with the foregoing.
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“
Transfer Certificate
” means a certificate substantially in the form set
out in Exhibit E or any other form agreed between the Facility Agent and the Parent.
“
UCC
” shall mean the
Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
“
United States
” and
“
U.S.
” shall each mean the United States of America.
“
Vessel
” shall mean the post-panamax
luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Yard.
“
Vessel Mortgage
” shall have the meaning provided in the definition of “Collateral and Guaranty Requirements”.
“
Vessel Value
” shall have the meaning set forth in Section 10.08.
“
Yard
” shall mean Meyer Werft GmbH, Papenburg/Germany, the shipbuilder constructing the Vessel pursuant to the
Construction Contract.
SECTION 2.
Amount and Terms of Credit Facility
.
2.01
The Commitments
. Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make on and
after the Initial Borrowing Date and prior to the Commitment Termination Date and at the times specified in Section 2.02 term loans to the Borrower (each, a “
Loan
” and, collectively, the “
Loans
”), which Loans
(i) shall bear interest in accordance with Section 2.06, (ii) shall be denominated and repayable in Dollars, (iii) shall be disbursed on any Borrowing Date, (iv) shall not exceed on such Borrowing Date for all Lenders the
Dollar Equivalent of the maximum available amount for such Borrowing Date as set forth in Section 2.02 and (v) disbursed on any Borrowing Date shall not exceed for any Lender the Dollar Equivalent of the Commitment of such Lender on such
Borrowing Date.
2.02
Amount and Timing of Each Borrowing; Currency of Disbursements
. (a) The Total Commitments
will be available in the amounts and on the dates set forth below:
(i) a portion of the Total Commitments not
exceeding 4% of the Initial Construction Price for the Vessel will be available on the Initial Borrowing Date;
(ii) a portion of the Total Commitments equaling 100% of the Hermes Premium (but, in no event shall more than [*] of the
proceeds of Loans be used to pay the Hermes Premium) will be available on one or more dates on or after the Initial Borrowing Date (it being understood and agreed that the Lenders shall be authorized to disburse directly to Hermes the proceeds of
Loans in an amount equal to the Hermes Premium that is then due and owing, without any action on the part of the Borrower (including, without limitation, without delivery by the Borrower of a Notice of Borrowing to the Facility Agent in respect
thereof), so long as the Facility Agent provides the Borrower with notice thereof);
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(iii) a portion of the Total Commitments not exceeding 4% of the Initial
Construction Price for the Vessel will be available on the date of payment of the second installment of the Initial Construction Price (which date is anticipated to be 24 months prior to the Delivery Date (as per the Construction Contract));
(iv) a portion of the Total Commitments not exceeding 4% of the Initial Construction Price for the Vessel will
be available on the date of payment of the third installment of the Initial Construction Price for the Vessel (which date is anticipated to be 18 months prior to the Delivery Date (as per the Construction Contract));
(v) a portion of the Total Commitments not exceeding 4% of the Initial Construction Price for the Vessel will be available
on the date of payment of the fourth installment of the Initial Construction Price for the Vessel (which date is anticipated to be 12 months prior to the Delivery Date (as per the Construction Contract); and
(vi) a portion of the Total Commitments not exceeding the sum of (a) 64% of the Initial Construction Price for the
Vessel (
plus
, if applicable, any amounts that were available pursuant to clauses (i) and (iii)-(v) above but not borrowed, subject to an overall cap of 80% of the Initial Construction Price for the Vessel) and (b) 80% of the
aggregate amount of the Permitted Change Orders will be available on the Delivery Date.
(b) The Loans made on each Borrowing
Date shall be disbursed by the Facility Agent to the Borrower and/or its designee(s), as set forth in Section 2.04, in Dollars and shall be in an amount equal to the Dollar Equivalent of the amount of the Total Commitment utilized to make such
Loans on such Borrowing Date pursuant to this Section 2.02,
provided
that in the event that the Borrower has not (i) notified the Facility Agent in the Notice of Borrowing that it has entered into Earmarked Foreign Exchange
Arrangements with respect to the amount required to be paid to Hermes or to the Yard on such Borrowing Date and (ii) provided reasonably sufficient evidence to the Facility Agent of such Earmarked Foreign Exchange Arrangements in the Notice of
Borrowing, the Facility Agent on such Borrowing Date shall convert the Dollar amount of the Loans to be made by each Lender into Euro at the Spot Rate applicable for such Borrowing Date (it being understood that the same Spot Rate shall be used for
such conversion as is used to calculate the Dollar Equivalent referred to in this Section 2.02(b)), and shall inform each Lender thereof, and such Euro amount shall thereafter be disbursed to the Borrower and/or its designee(s) as set forth in
Section 2.04 (it being understood that each Lender shall remit its Loans to the Facility Agent in Dollars on such Borrowing Date).
2.03
Notice of Borrowing
. Subject to the second parenthetical in Section 2.02(a)(ii), whenever the Borrower desires to make a Borrowing hereunder, it shall give the Facility Agent at its
Notice Office at least three Business Days’ prior written notice of each Loan to be made hereunder,
provided
that any such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (Frankfurt time)
(unless such 11:00 A.M. deadline is waived by the Facility Agent in the case of the Initial Borrowing Date). Each such written notice (each a “
Notice of Borrowing
”), except as otherwise expressly provided in Section 2.08,
shall be
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irrevocable and shall be given by the Borrower substantially in the form of Exhibit A, appropriately completed to specify (i) the portion of the Total Commitments to be utilized on such
Borrowing Date, (ii) if the Borrower and/or the Parent has entered into Earmarked Foreign Exchange Arrangements with respect to the installment payments due and owing under the Construction Contract to be funded by the Loans to be incurred on
such Borrowing Date, the Dollar Equivalent of the portion of the Total Commitment to be borrowed on such Borrowing Date and evidence of such Earmarked Foreign Exchange Arrangements, (iii) the date of such Borrowing (which shall be a Business
Day), (iv) the initial Interest Period to be applicable thereto, (v) to which account(s) the proceeds of such Loans are to be deposited (it being understood that pursuant to Section 2.04 the Borrower may designate one or more accounts
of the Yard, Hermes and/or the provider of the foreign exchange arrangements referenced in the definition of Dollar Equivalent) and (vi) that all representations and warranties made by each Credit Party, in or pursuant to the Credit Documents
are true and correct in all material respects (unless stated to relate to a specific earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and no Event of Default
is or will be continuing after giving effect to such Borrowing. The Facility Agent shall promptly give each Lender which is required to make Loans, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.
2.04
Disbursement of
Funds
. No later than 12:00 Noon (Frankfurt time) on the date specified in each Notice of Borrowing, each Lender will make available its
pro
rata
portion of each Borrowing requested in the Notice of Borrowing to be made on such
date. All such amounts shall be made available in the currency required by Section 2.02(b) in immediately available funds at the Payment Office of the Facility Agent, and the Facility Agent will make available to (I) in the case of Loans
disbursed in Dollars, the Borrower (and/or its designee(s), to the extent possible and to the extent such designee is a provider of Earmarked Foreign Exchange Arrangements referenced in the definition of Dollar Equivalent) and (II) in the case
of Loans disbursed in Euro, designee(s) of the Borrower (to the extent any such designee is the Yard or, in the case of the Hermes Premium, Hermes), in each case prior to 3:00 P.M. (Frankfurt Time) on such day, to the extent of funds actually
received by the Facility Agent prior to 12:00 Noon (Frankfurt Time) on such day, in each case at the Payment Office in the account(s) specified in the applicable Notice of Borrowing, the aggregate of the amounts so made available by the Lenders.
Unless the Facility Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Facility Agent such Lender’s portion of any Borrowing to be made on such date, the
Facility Agent may assume that such Lender has made such amount available to the Facility Agent on such date of Borrowing and the Facility Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Facility Agent by such Lender, the Facility Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Facility Agent’s demand therefor, the Facility Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Facility Agent. The Facility Agent shall also be entitled to
recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Facility Agent to the Borrower until the date such
corresponding amount is recovered by the Facility Agent, at a rate per annum equal to (i) if
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recovered from such Lender, at the overnight Eurodollar Rate and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to
Section 2.06. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such
Lender to make Loans hereunder.
2.05
Pro Rata Borrowings
. All Borrowings of Loans under this Agreement shall be
incurred from the Lenders
pro
rata
on the basis of their Commitments. It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder. The obligations of the Lenders under this Agreement are several and not joint and no Lender shall be
responsible for the failure of any other Lender to satisfy its obligations hereunder.
2.06
Interest
. (a) The Borrower
agrees to pay interest in respect of the unpaid principal amount of each Loan from the date the proceeds thereof are made available to the Borrower until the maturity (whether by acceleration or otherwise) of such Loan at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin
plus
the Eurodollar Rate for such Interest Period
plus
any Mandatory Costs.
(b) If the Borrower fails to pay any amount payable by it under a Credit Document on its due date, interest shall accrue on the
overdue amount (in the case of overdue interest to the extent permitted by law) from the due date up to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (c) below, 2%
plus
the rate
which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing
under this Section 2.06(b) shall be immediately payable by the Borrower on demand by the Facility Agent.
(c)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that first Interest Period shall be 2%
plus
the rate which
would have applied if the overdue amount had not become due.
Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
(d) Accrued and unpaid interest shall be payable in respect of each Loan, on the last day of each Interest Period applicable thereto, on any repayment or prepayment date (on the amount repaid or prepaid),
at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.
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(e) Upon each Interest Determination Date, the Facility Agent shall determine the Eurodollar
Rate for each Interest Period applicable to the Loans to be made pursuant to the applicable Borrowing and shall promptly notify the Borrower and the respective Lenders thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
2.07
Interest Periods
. At the time the Borrower gives any Notice of
Borrowing in respect of the making of Loans by the Lenders (in the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of an Interest Period applicable to such Loans (in the case of any
subsequent Interest Period), it shall have the right to elect, by giving the Facility Agent notice thereof, the interest period (each an “
Interest Period
”) applicable to such Loans, which Interest Period shall, at the option of the
Borrower, be a three or six month period;
provided
that:
(a) all Loans comprising a Borrowing shall at
all times have the same Interest Period;
(b) the initial Interest Period for any Loan shall commence on the
date of Borrowing of such Loan and each Interest Period occurring thereafter in respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires;
(c) if any Interest Period relating to a Loan begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;
(d) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the first succeeding Business Day;
provided
,
however
, that if any
Interest Period for a Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
(e) no Interest Period longer than three months may be selected at any time when an Event of Default (or, if
the Facility Agent or the Required Lenders have determined that such an election at such time would be disadvantageous to the Lenders, a Default) has occurred and is continuing;
(f) no Interest Period in respect of any Borrowing of any Loans shall be selected which extends beyond the Maturity Date;
and
(g) at no time shall there be more than ten Borrowings of Loans subject to different Interest Periods.
If upon the expiration of any Interest Period applicable to a Borrowing, the Borrower has failed to elect a new Interest
Period to be applicable to such Loans as provided above, the Borrower shall be deemed to have elected a three month Interest Period to be applicable to such Loans effective as of the expiration date of such current Interest Period.
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2.08
Increased Costs, Illegality, Market Disruption, etc
. (a) In the event that any
Lender shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) at any time, that such Lender shall incur increased costs (including, without limitation, pursuant to Basel II to the extent Basel II is applicable), Mandatory Costs (as set forth on Schedule 1.01(b))
or reductions in the amounts received or receivable hereunder with respect to any Loan because of, without duplication, any change since the Effective Date in any applicable law or governmental rule, governmental regulation, governmental order,
governmental guideline or governmental request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, governmental regulation, governmental
order, governmental guideline or governmental request, such as, for example, but not limited to: (A) a change in the basis of taxation of payment to any Lender of the principal of or interest on such Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Lender, or any franchise tax based on net income or net profits, of such Lender pursuant to the laws of the jurisdiction in which such
Lender is organized or in which such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or
(B) a change in official reserve requirements; or
(ii) at any time, that the making or continuance of any
Loan has been made unlawful by any law or governmental rule, governmental regulation or governmental order;
then
, and in any such
event, such Lender shall promptly give notice (by telephone confirmed in writing) to the Borrower and to the Facility Agent of such determination (which notice the Facility Agent shall promptly transmit to each of the Lenders). Thereafter
(x) in the case of clause (i) above, the Borrower agrees (to the extent applicable), to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation
for the increased costs or reductions to such Lender or such other corporation and (y) in the case of clause (ii) above, the Borrower shall take one of the actions specified in Section 2.08(b) as promptly as possible and, in any
event, within the time period required by law. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such Lender’s
determination of compensation owing under this Section 2.08(a) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to
this Section 2.08(a), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for the calculation of such additional amounts;
provided
that, subject to the provisions of
Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
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(b) At any time that any Loan is affected by the circumstances described in
Section 2.08(a)(i) or (ii), the Borrower may (and in the case of a Loan affected by the circumstances described in Section 2.08(a)(ii) shall) either (x) if the affected Loan is then being made initially, cancel the respective
Borrowing by giving the Facility Agent notice in writing on the same date or the next Business Day that the Borrower was notified by the affected Lender or the Facility Agent pursuant to Section 2.08(a)(i) or (ii) or (y) if the
affected Loan is then outstanding, upon at least three Business Days’ written notice to the Facility Agent, in the case of any Loan, repay all outstanding Borrowings (within the time period required by the applicable law or governmental rule,
governmental regulation or governmental order) which include such affected Loans in full in accordance with the applicable requirements of Section 4.02;
provided
that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 2.08(b).
(c) If any Lender determines that after the Effective
Date (i) the introduction of or effectiveness of or any change in any applicable law or governmental rule, governmental regulation, governmental order, governmental guideline, governmental directive or governmental request (whether or not
having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency will have the effect of increasing the amount of capital required or
expected to be maintained by such Lender, or any corporation controlling such Lender, based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, (ii) compliance with any law or regulation or any request
from or requirement of any central bank or other fiscal, monetary or other authority made after the Effective Date (including any which relates to capital adequacy or liquidity controls or which affects the manner in which a Lender allocates capital
resources to obligations under this Agreement, any Interest Rate Protection Agreement and/or any Other Hedging Agreement) or (iii) to the extent that such change is not discretionary and is pursuant to law, a governmental mandate or request, or
a central bank or other fiscal or monetary authority mandate or request, any change in the risk weight allocated by such Lender to the Borrower after the Effective Date, then the Borrower agrees (to the extent applicable) to pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or
such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such
Lender’s determination of compensation owing under this Section 2.08(c) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 2.08(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts;
provided
that, subject to the provisions of
Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
(d) If a Market Disruption Event occurs in relation to any Lender’s share of a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period
shall be the percentage rate per annum which is the sum of:
(i) the Applicable Margin;
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(ii) the rate determined by such Lender and notified to the Facility Agent
by 5:00 P.M. (Frankfurt time) on the Interest Determination Date for such Interest Period to be that which expresses as a percentage rate per annum the cost to each such Lender of funding its participation in that Loan for a period equivalent to
such Interest Period from whatever source it may reasonably select;
provided
that the rate provided by a Lender pursuant to this clause (ii) shall not be disclosed to any other Lender and shall be held as confidential by the Facility
Agent and the Borrower; and
(iii) the Mandatory Costs, if any, applicable to such Lender of funding its
participation in that Loan.
(e) If a Market Disruption Event occurs and the Facility Agent or the Borrower so require, the
Facility 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. Any alternative basis agreed pursuant to the immediately preceding
sentence shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties. If no agreement is reached pursuant to this clause (e), the rate provided for in clause (d) above shall apply for the entire applicable
Interest Period.
(f) If any Reference Bank ceases to be a Lender under this Agreement, (x) it shall cease to be a
Reference Bank and (y) the Facility Agent shall, with the approval (which shall not be unreasonably withheld) of the Borrower, nominate as soon as reasonably practicable another Lender to be a Reference Bank in place of such Reference Bank.
2.09
Indemnification; Breakage Costs
. The Borrower agrees to indemnify each Lender, within two Business Days of demand
(in writing which request shall set forth in reasonable detail the basis for requesting and the calculation of such amount and which in the absence of manifest error shall be conclusive evidence as to the amount due), for all losses, expenses and
liabilities (including, without limitation, any such loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Loans but excluding any loss of anticipated profits)
which such Lender may sustain in respect of Loans made to the Borrower: (i) if for any reason (other than a default by such Lender or the Facility Agent) a Borrowing of Loans does not occur on a date specified therefor in a Notice of Borrowing
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 2.08(a)); (ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 2.08(a), Section 4.01 or
Section 4.02 or as a result of an acceleration of the Loans pursuant to Section 11) of any of its Loans, or assignment and/or transfer of its Loans pursuant to Section 2.11, occurs on a date which is not the last day of an Interest
Period with respect thereto; or (iii) if any prepayment of any of its Loans is not made on any date specified in a notice of prepayment given by the Borrower.
2.10
Change of Lending Office; Limitation on Additional Amounts
. (a) Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 2.08(a),
Section 2.08(b), or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable good faith efforts (subject to overall policy considerations of such Lender) to designate another lending office for any
Loans affected by such event or otherwise take steps to mitigate the effect of such event,
provided
that such designation shall be made
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and/or such steps shall be taken at the Borrower’s cost and on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage in excess of
de
minimus
amounts, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 2.10 shall affect or postpone any of the obligations of the Borrower or the rights of any
Lender provided in Section 2.08 and Section 4.04.
(b) Notwithstanding anything to the contrary contained in
Sections 2.08, 2.09 or 4.04 of this Agreement, unless a Lender gives notice to the Borrower that it is obligated to pay an amount under any such Section within 180 days of the later of (x) the date the Lender incurs the respective increased
costs, Taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital or (y) the date such Lender has knowledge of its incurrence of the respective increased costs, Taxes, loss, expense or
liability, reductions in amounts received or receivable or reduction in return on capital, then such Lender shall only be entitled to be indemnified for such amount by the Borrower pursuant to said Section 2.08, 2.09, or 4.04, as the case may
be, to the extent the costs, Taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to
the Borrower that it is obligated to pay the respective amounts pursuant to said Section 2.08, 2.09 or 4.04, as the case may be. This Section 2.10(b) shall have no applicability to any Section of this Agreement other than said Sections
2.08, 2.09 and 4.04.
2.11
Replacement of Lenders
. (x) If any Lender becomes a Defaulting Lender or otherwise
defaults in its obligations to make Loans, (y) upon the occurrence of any event giving rise to the operation of Section 2.08(a) or Section 4.04 with respect to any Lender which results in such Lender charging to the Borrower material
increased costs in excess of the average costs being charged by the other Lenders, or (z) as provided in Section 14.11(b) in the case of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower shall (for its own cost) have the right, if no Default or Event of Default will exist immediately after giving effect to the respective
replacement, to replace such Lender (the “
Replaced Lender
”) (subject to the consent of KfW, as CIRR mandatary, if (i) the Replaced Lender is a Refinanced Bank and (ii) the Replacement Lender (as defined below) elects to
become a Refinanced Bank, and the Hermes Agent) with one or more other Eligible Transferee or Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “
Replacement
Lender
”) reasonably acceptable to the Facility Agent (it being understood that all then-existing Lenders are reasonably acceptable);
provided
that:
(a) at the time of any replacement pursuant to this Section 2.11, the Replacement Lender shall enter into one or more
Transfer Certificates pursuant to Section 13.01(a) (and with all fees payable pursuant to said Section 13.02 to be paid by the Replacement Lender) pursuant to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the sum (without duplication) of (x) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans of the Replaced Lender, and (y) an amount equal to all accrued, but unpaid, Commitment Commission owing to the Replaced Lender pursuant to Section 3.01;
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(b) all obligations of the Borrower due and owing to the Replaced Lender at
such time (other than those specifically described in clause (a) above) in respect of which the assignment purchase price has been, or is concurrently being, paid shall be paid in full to such Replaced Lender concurrently with such replacement;
and
(c) if the Borrower elects to replace any Lender pursuant to clause (x), (y) or (z) of this
Section 2.11, the Borrower shall also replace each other Lender that qualifies for replacement under such clause (x), (y) or (z).
Upon the execution of the respective Transfer Certificate and the payment of amounts referred to in clauses (a) and (b) above, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05), which shall survive as to such Replaced
Lender.
2.12
Disruption to Payment Systems, Etc
. If either the Facility Agent determines (in its discretion) that a
Disruption Event has occurred or the Facility Agent is notified by the Parent or the Borrower that a Disruption Event has occurred:
(i) the Facility Agent may, and shall if requested to do so by the Borrower or the Parent, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or
administration of this Agreement as the Facility Agent may deem necessary in the circumstances;
(ii) the
Facility Agent shall not be obliged to consult with the Borrower or the Parent in relation to any changes mentioned in clause (i) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;
(iii) the Facility Agent may consult with the other Agents, the Joint
Lead Arrangers and the Lenders in relation to any changes mentioned in clause (i) above but shall not be obliged to do so if, in its opinion, it is not practicable or necessary to do so in the circumstances;
(iv) any such changes agreed upon by the Facility Agent and the Borrower or the Parent pursuant to clause (i) above
shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the parties to this Agreement as an amendment to (or, as the case may be, waiver of) the terms of the Credit Documents, notwithstanding the
provisions of Section 14.11, until such time as the Facility Agent is satisfied that the Disruption Event has ceased to apply;
(v) the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence or any other category of liability whatsoever but not including any
claim based on the gross negligence, fraud or willful misconduct of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Section 2.12; and
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(vi) the Facility Agent shall notify the other Agents, the Joint Lead
Arrangers and the Lenders of all changes agreed pursuant to clause (iv) above as soon as practicable.
SECTION 3.
Commitment Commission; Fees; Reductions of Commitment
.
3.01
Commitment Commission
. (a) The Borrower agrees to
pay the Facility Agent for distribution to each Non-Defaulting Lender a commitment commission (the “
Commitment Commission
”) for the period from the Effective Date to and including the Commitment Termination Date (or such earlier
date as the Total Commitment shall have been terminated) computed at a rate for each day equal to 0.375 multiplied by the Applicable Margin multiplied by the Commitment for such day of such Non-Defaulting Lender divided by 360. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Payment Date and on the Borrowing Date contemplated by Section 2.02(a)(vi) (or such earlier date upon which the Total Commitment is terminated).
(b) The Borrower shall pay to each Agent, for such Agent’s own account or for the account of the Lenders, such other fees as have
been agreed to in writing by the Borrower and such Agent.
3.02
Voluntary Reduction or Termination of Commitments
. Upon
at least three Business Days’ prior notice to the Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, at any time or from time to time, without
premium or penalty, to reduce or terminate the Total Commitment, in whole or in part, in integral multiples of €5,000,000 in the case of partial reductions thereto,
provided
that each such reduction shall apply proportionately to
permanently reduce the Commitment of each Lender.
3.03
Mandatory Reduction of Commitments
. (a) In addition to any
other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment (and the Commitment of each Lender) shall terminate in its entirety on the Commitment Termination Date.
(b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement,
the Total Commitments (and the Commitments of each Lender) shall be reduced (immediately after the relevant Loans are made) on each Borrowing Date by the amount of Commitments (denominated in Euro) utilized to make the Loans made on such Borrowing
Date.
(c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of
this Agreement, the Total Commitment shall be terminated at the times required by Section 4.02.
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(d) Each reduction to the Total Commitment pursuant to this Section 3.03 and
Section 4.02 shall be applied proportionately to reduce the Commitment of each Lender.
SECTION 4.
Prepayments;
Repayments; Taxes
.
4.01
Voluntary Prepayments
. The Borrower shall have the right to prepay the Loans, without
premium or penalty except as provided by law, in whole or in part at any time and from time to time on the following terms and conditions:
(a) the Borrower shall give the Facility Agent prior to 12:00 Noon (Frankfurt time) at its Notice Office at least 30 Business Days’ prior written notice of its intent to prepay such Loans, the amount
of such prepayment and the specific Borrowing or Borrowings pursuant to which made, which notice the Facility Agent shall promptly transmit to each of the Lenders;
(b) each prepayment shall be in an aggregate principal amount of at least $1,000,000 or such lesser amount of a Borrowing
which is outstanding,
provided
that no partial prepayment of Loans made pursuant to any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than $1,000,000;
(c) at the time of any prepayment of Loans pursuant to this Section 4.01 on any date other than the last day of the
Interest Period applicable thereto, the Borrower shall pay the amounts required pursuant to Section 2.09;
(d) in the event of certain refusals by a Lender as provided in Section 14.11(b) to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower may, upon five Business Days’ written notice to the Facility Agent at its Notice Office (which notice the
Facility Agent shall promptly transmit to each of the Lenders), prepay all Loans, together with accrued and unpaid interest, Commitment Commission, and other amounts owing to such Lender (or owing to such Lender with respect to each Loan which gave
rise to the need to obtain such Lender’s individual consent) in accordance with said Section 14.11(b) so long as (A) the Commitment of such Lender (if any) is terminated concurrently with such prepayment (at which time Schedule
1.01(a) shall be deemed modified to reflect the changed Commitments) and (B) the consents required by Section 14.11(b) in connection with the prepayment pursuant to this clause (d) have been obtained; and
(e) each prepayment in respect of any Loans made pursuant to a Borrowing shall be applied (x) in inverse order of
maturity and (y) except as expressly provided in the preceding clause (d),
pro rata
among the Loans comprising such Borrowing,
provided
that in connection with any prepayment of Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Loan of a Defaulting Lender until all other Loans of Non-Defaulting Lenders have been repaid in full.
4.02
Mandatory Repayments and Commitment Reductions
. (a) In addition to any other mandatory repayments pursuant to this Section 4.02 or any other Section of this Agreement, the outstanding
Loans shall be repaid (without further action of the Borrower being
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required) in 24 equal semi-annual installments commencing on the first Business Day that is on or after the sixth month anniversary of the Borrowing Date in relation to the Delivery Date and
ending on the Maturity Date (each such repayment, a “
Scheduled Repayment
”).
(b) In addition to any other
mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of this Agreement, but without duplication, on (i) the Business Day following the date of a Collateral Disposition (other than a Collateral
Disposition constituting an Event of Loss) and (ii) the earlier of (A) the date which is 150 days following any Collateral Disposition constituting an Event of Loss involving the Vessel (or, in the case of an Event of Loss which is a
constructive or compromised or arranged total loss of the Vessel, if earlier, 180 days after the date of the event giving rise to such damage) and (B) the date of receipt by the Borrower, any of its Subsidiaries or the Facility Agent of the
insurance proceeds relating to such Event of Loss, the Borrower shall repay the outstanding Loans in full and the Total Commitment shall be automatically terminated (without further action of the Borrower being required).
(c) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of
this Agreement, but without duplication, if (x) the Construction Contract is terminated prior to the Delivery Date, (y) the Vessel has not been delivered to the Borrower by the Yard pursuant to the Construction Contract by the Commitment
Termination Date or (z) any of the events described in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the Delivery Date, within five Business Days of the occurrence of such event the Borrower shall repay
the outstanding Loans in full and the Total Commitment shall be automatically terminated (without further action of the Borrower being required).
(d) With respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the specific Borrowing or Borrowings pursuant to which such Loans were made,
provided
that
(i) all Loans with Interest Periods ending on such date of required repayment shall be paid in full prior to the payment of any other Loans and (ii) each repayment of any Loans comprising a Borrowing shall be applied
pro
rata
among such Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Facility Agent shall, subject to the preceding provisions of this clause (d), make such designation in its sole reasonable discretion with
a view, but no obligation, to minimize breakage costs owing pursuant to Section 2.09.
(e) Notwithstanding anything to
the contrary contained elsewhere in this Agreement, all outstanding Loans shall be repaid in full on the Maturity Date.
4.03
Method and Place of Payment
. Except as otherwise specifically provided herein, all payments under this Agreement shall be made to the Facility Agent for the account of the Lender or Lenders entitled thereto not later than 10:00 A.M. (New York
time) on the date when due and shall be made in Dollars in immediately available funds at the Payment Office of the Facility Agent. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day (unless the next succeeding Business Day shall fall in the next calendar month, in which case the due date thereof shall be the previous Business Day) and, with respect to payments
of principal, interest shall be payable at the applicable rate during such extension.
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4.04
Net Payments; Taxes
. (a) All payments made by any Credit Party hereunder will be
made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income, net profits or any franchise
tax based on net income or net profits, and any branch profits tax of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located
or any subdivision thereof or therein or due to failure to provide documents under Section 4.04(b), all such taxes “
Excluded Taxes
”) and all interest, penalties or similar liabilities with respect to such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges to the extent imposed on taxes other than Excluded Taxes (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as
“
Taxes
” and “
Taxation
” shall be applied accordingly). The Borrower will furnish to the Facility Agent within 45 days after the date of payment of any Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender agrees (consistent with legal and regulatory restrictions and subject to overall policy considerations of
such Lender) to file any certificate or document or to furnish to the Borrower any information as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes;
provided
,
however
, that nothing in this Section 4.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations). The Borrower shall not be required to
indemnify any Lender for Taxes attributed to such Lender’s failure to provide the required documents under this Section 4.04(b).
(c) If the Borrower pays any additional amount under this Section 4.04 to a Lender and such Lender determines in its sole discretion exercised in good faith that it has actually received or realized
in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “
Tax Benefit
”), such Lender shall pay to the Borrower an
amount that such Lender shall, in its sole discretion exercised in good faith, determine is equal to the net benefit, after tax, which was obtained by such Lender in such year as a consequence of such Tax Benefit;
provided
,
however
,
that (i) any Lender may determine, in its sole discretion exercised in good faith consistent with the policies of such Lender, whether to seek a Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or
reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or defenses and (iii) nothing in this Section 4.04(c) shall require any
Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns).
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4.05
Application of Proceeds
. (a) Subject to the provisions of the Intercreditor
Agreement (to the extent it is operative), all proceeds collected by the Collateral Agent upon any sale or other disposition of such Collateral of each Credit Party, together with all other proceeds received by the Collateral Agent under and in
accordance with this Agreement and the other Credit Documents (except to the extent released in accordance with the applicable provisions of this Agreement or any other Credit Document), shall be applied by the Facility Agent to the payment of the
Secured Obligations as follows:
(i)
first
, to the payment of all amounts owing to the Collateral Agent
or any other Agent of the type described in clauses (iii) and (iv) of the definition of “Secured Obligations”;
(ii)
second
, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Credit Document Obligations shall be paid to the Lender
Creditors as provided in Section 4.05(d) hereof, with each Lender Creditor receiving an amount equal to such outstanding Credit Document Obligations or, if the proceeds are insufficient to pay in full all such Credit Document Obligations, its
Pro Rata Share of the amount remaining to be distributed;
(iii)
third
, to the extent proceeds remain
after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Other Obligations shall be paid to the Other Creditors as provided in Section 4.05(d) hereof, with each Other Creditor receiving an
amount equal to such outstanding Other Obligations or, if the proceeds are insufficient to pay in full all such Other Obligations, its Pro Rata Share of the amount remaining to be distributed; and
(iv)
fourth
, to the extent proceeds remain after the application pursuant to the preceding clauses (i) through
(iii), inclusive, and following the termination of this Agreement, the Credit Documents, the Interest Rate Protection Agreements and the Other Hedging Agreements in accordance with their terms, to the relevant Credit Party or to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, “
Pro Rata Share
” shall mean,
when calculating a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s Credit Document
Obligations or Other Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Credit Document Obligations or Other Obligations, as the case may be.
(c) If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the unpaid Credit Document Obligations or Other Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Credit Document Obligations or
Other Obligations, as the case may be, have not been
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paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be,
of such Secured Creditor and the denominator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made (x) if to the Lender Creditors, to the Facility Agent under this
Agreement for the account of the Lender Creditors, and (y) if to the Other Creditors, to the trustee, paying agent or other similar representative (each, a “
Representative
”) for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For purposes of applying payments received in accordance with this
Section 4.05, the Collateral Agent shall be entitled to rely upon (i) the Facility Agent under this Agreement and (ii) the Representative for the Other Creditors or, in the absence of such a Representative, upon the Other Creditors
for a determination (which the Facility Agent, each Representative for any Other Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Credit Document Obligations and Other
Obligations owed to the Lender Creditors or the Other Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from an Other Creditor) to the contrary, the Collateral Agent, shall be entitled to assume that
no Interest Rate Protection Agreements or Other Hedging Agreements are in existence.
(f) It is understood and agreed that
each Credit Party shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral pledged by it under and pursuant to the Security Documents and the aggregate amount of the Secured
Obligations of such Credit Party.
SECTION 5.
Conditions Precedent to the Initial Borrowing Date
. The obligation of
each Lender to make Loans on the Initial Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 5.02, 5.04, 5.05, 5.06 (other than delivery of the Share Charge Collateral), 5.07,
5.08, 5.10, 5.11 and 5.12) waiver of the following conditions:
5.01
Effective Date
. On or prior to the Initial
Borrowing Date, the Effective Date shall have occurred.
5.02
Intercreditor Agreement
. On the Initial Borrowing Date,
the Intercreditor Agreement shall have been executed by the parties thereto and shall be in full force and effect.
5.03
Corporate Documents; Proceedings; etc
. On the Initial Borrowing Date, the Facility Agent shall have received a certificate, dated the Initial Borrowing Date, signed by the secretary or any assistant secretary of each Credit Party (or, to the
extent such Credit Party does not have a secretary or assistant secretary, the analogous Person within such Credit Party), and attested to by an authorized officer, member or general partner of such Credit Party, as the case may be, in substantially
the form of Exhibit D, with appropriate insertions, together with copies of the certificate of incorporation and by-laws (or equivalent organizational documents) of such Credit Party and the resolutions of such Credit Party referred to in such
certificate.
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5.04
Know Your Customer
. On the Initial Borrowing Date, the Facility Agent, the
Hermes Agent and the Lenders shall have been provided with all information requested in order to carry out and be reasonably satisfied with all necessary “know your customer” information required pursuant to the PATRIOT ACT and such other
documentation and evidence necessary in order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in connection with each of
the Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
5.05
Construction Contract and Other Material Agreements
. On or prior to the Initial Borrowing Date, the Facility Agent shall have received a true, correct and complete copy of the Construction Contract, which shall be in full force and effect,
and all other material contracts in connection with the construction, supervision and acquisition of the Vessel that the Facility Agent may reasonably request and all such documents shall be reasonably satisfactory in form and substance to the
Facility Agent (it being understood that the executed copy of the Construction Contract delivered to the Joint Lead Arrangers prior to the Effective Date and attached as an exhibit to the Commitment Letter is satisfactory).
5.06
Share Charge
. On the Initial Borrowing Date, the Pledgor shall have duly authorized, executed and delivered a Bermuda share
charge for the Borrower substantially in the form of Exhibit F (as modified, supplemented or otherwise modified from time to time, the “
Share Charge
”) or otherwise reasonably satisfactory to the Joint Lead Arrangers, together with
the Share Charge Collateral.
5.07
Assignment of Contracts
. On the Initial Borrowing Date, the Borrower shall have duly
authorized, executed and delivered a valid and effective assignment by way of security in favor of the Collateral Agent of all of the Borrower’s present and future interests in and benefits under (x) the Construction Contract, (y) the
Refund Guarantee and (z) the Construction Risk Insurance (it being understood that the Borrower will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurance accept and endorse on such insurance policy a
loss payable clause substantially in the form set forth in Part 3 of Schedule 2 to the Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantee and none of the Construction Risk Insurances will
have been issued on the Initial Borrowing Date), which assignment shall be substantially in the form of Exhibit J hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and customary for transactions of this type,
along with appropriate notices and consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent), including, without limitation, those acknowledgments,
notices and consents listed on Schedule 5.07 (as modified, supplemented or amended from time to time, the “
Assignment of Contracts
”);
provided
that, if the Refund Guarantee issued to the Borrower on the Initial Borrowing Date
shall have been issued by KfW IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and delivered, valid and effective assignment of Refund Guarantee in the form of Exhibit Q hereto or otherwise
reasonably acceptable to the Joint Lead Arrangers and the
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Borrower and customary for transactions of this type, along with appropriate notices and consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or
otherwise agreed by the Borrower and the Facility Agent) (as modified, supplemented or amended from time to time, the “
Assignment of KfW Refund Guarantees
”).
5.08
Consents Under Existing Credit Facilities
. On or prior to the Initial Borrowing Date, the Facility Agent shall have received evidence that all conditions, waivers, consents, acknowledgments
and amendments in relation to any existing credit facilities of the Parent and/or any of its Subsidiaries required in connection with or in order to permit the transactions hereunder (including, without limitation, any prepayments required in
connection therewith) shall have been obtained and/or satisfied.
5.09
Process Agent
. On or prior to the Initial
Borrowing Date, the Facility Agent shall have received satisfactory evidence from the Parent, the Borrower and any other applicable Credit Party that they have each appointed an agent in London for the service of process or summons in relation to
each of the Credit Documents.
5.10
Opinions of Counsel
.
(a) On the Initial Borrowing Date, the Facility Agent shall have received from O’Melveny & Myers LLP (or another counsel
reasonably acceptable to the Joint Lead Arrangers), special New York counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the
Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
(b) On the Initial Borrowing Date, the Facility Agent shall have received from Cox Hallett Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bermudian counsel to
the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the
Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
(c) On the Initial Borrowing Date, the Facility Agent
shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the
Facility Agent (for itself and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Secured Creditors) dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date or
otherwise reasonably satisfactory to the Joint Lead Arrangers covering the matters set forth on Schedule 5.10.
(d) On the
Initial Borrowing Date, the Facility Agent shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special German counsel to the Documentation Agent for the benefit of the Joint Lead
Arrangers, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead
Arrangers, covering the matters set forth on Schedule 5.10.
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(e) On the Initial Borrowing Date, the Facility Agent shall have received from
Holland & Knight (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Florida counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date
in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
5.11
KfW Refinancing
. On or prior to the Initial Borrowing Date, the definitive credit documentation related to the KfW
Refinancing (including, without limitation, the Interaction Agreement) shall have been duly executed and delivered by the parties thereto and shall be reasonably satisfactory to KfW and the Refinanced Banks, and the KfW Refinancing shall be
effective in accordance with its terms.
5.12
Equity Payment
. On the Initial Borrowing Date, the Facility Agent shall
have received evidence, in form and substance reasonably satisfactory to the Facility Agent, that the Borrower shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for the Vessel (other than from the proceeds
of Loans and loans under the Term Loan Facilities).
5.13
Financing Statements
. On the Initial Borrowing Date, the
Collateral Agent, in consultation with the Credit Parties, shall have:
(a) prepared and filed proper financing
statements (Form UCC-1 or the equivalent) fully prepared for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the Share Charge, the Assignment of Contracts and the Assignment of KfW Refund Guarantees; and
(b) received certified copies of lien search results (Form UCC-11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and
Florida, together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully prepared for filing if required by applicable laws for any financing statement which covers the Collateral except
to the extent evidencing Permitted Liens.
5.14
Security Trust Deed
. On the Initial Borrowing Date, the Security
Trust Deed shall have been executed by the parties thereto and shall be in full force and effect.
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SECTION 6.
Conditions Precedent to each Borrowing Date
. The obligation of each Lender
to make Loans on each Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 6.01, 6.02, 6.03, 6.04, 6.06 and 6.07) waiver of the following conditions:
6.01
No Default; Representations and Warranties
. At the time of each Borrowing and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material respects both before and after giving effect to such Borrowing
with the same effect as though such representations and warranties had been made on the Borrowing Date in respect of such Borrowing (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of such specified date).
6.02
Consents
. On
or prior to each Borrowing Date, all necessary governmental (domestic and foreign) and material third party approvals and/or consents in connection with the Construction Contract, the Refund Guarantees (to the extent issued on or prior to such
Borrowing Date), the Vessel and the other transactions contemplated hereby (except to the extent specifically addressed in other sections of Section 5 or this Section 6) shall have been obtained and remain in effect. On each Borrowing
Date, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon this Agreement,
the Transaction or the other transactions contemplated by the Credit Documents.
6.03
Refund Guarantees
. On
(x) the Initial Borrowing Date, the Refund Guarantee for the Pre-delivery Installment to be paid on the Initial Borrowing Date shall have been issued and assigned to the Collateral Agent pursuant to an Assignment of Contracts (or, if such
Refund Guarantee is issued by KfW IPEX-Bank GmbH, the Assignment of KfW Refund Guarantees) and (y) each other Borrowing Date (other than the Borrowing Date in relation to the Delivery Date), each additional Refund Guarantee that has been issued
since the Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a supplement to the relevant schedule to the Assignment of Contracts (or, in the case of Refund Guarantees issued by KfW IPEX-Bank GmbH, a supplement to
the relevant schedule of the Assignment of KfW Refund Guarantees) to the Collateral Agent with the updated information, in each case along with (to the extent incorporated into the Assignment of Contracts) an appropriate notice and consent relating
thereto, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to (i) the amount of the corresponding Pre-delivery
Installment to be paid by the Borrower to the Yard
minus
(ii) the amount paid by the Yard to the Borrower in respect of the corresponding Pre-delivery Installment under Article 8, Clause 2.8 (i), (ii), (iii) or (iv),
as the case may be, of the Construction Contract pursuant to the terms of each Refund Guarantee, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect.
6.04
Equity Payment
. On each Borrowing Date on which the proceeds of Loans are being used to fund a payment under the Construction
Contract, the Facility Agent shall have received evidence, in form and substance reasonably satisfactory to the Facility Agent, of the payment by the Borrower (other than from proceeds of Loans) of 1% of the amount due on such Borrowing Date under
the Construction Contract, which payment may be made from proceeds of Term Loans (other than on the Initial Borrowing Date).
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6.05
Fees, Costs, etc
. On each Borrowing Date, the Borrower shall have paid to the
Agents, the Joint Lead Arrangers and the Lenders all costs, fees, expenses (including, without limitation, reasonable fees and expenses of White & Case LLP and local and maritime counsel and consultants) and other compensation contemplated
hereby payable to the Agents, the Joint Lead Arrangers and the Lenders or payable in respect of the transactions contemplated hereunder (including, without limitation, the KfW Refinancing), to the extent then due;
provided
that (i) any
such costs, fees and expenses and other compensation shall have been invoiced to the Borrower at least three Business Days prior to such Borrowing Date and (ii) any such costs, fees and expenses in respect of the KfW Refinancing shall not
include ongoing or recurring legal costs or expenses after the Effective Date.
6.06
Construction Contract
. On each
Borrowing Date, the Borrower shall have certified that all conditions and requirements under the Construction Contract required to be satisfied on such Borrowing Date, including in connection with the respective payment installments to be made to
the Yard on such Borrowing Date, shall have been satisfied (including, but not limited to, the Borrower’s payment to the Yard of the portion of the payment installment on the Vessel that is not being financed with proceeds of the Loans), other
than those that are not materially adverse to the Lenders, it being understood that any litigation between the Yard and the Parent and/or Borrower shall be deemed to be materially adverse to the Lenders.
6.07
Hermes Cover
. On each Borrowing Date, (x) the Facility Agent shall have received evidence from the Hermes Agent that the
Hermes Cover is in full force and effect on terms acceptable to the Joint Lead Arrangers (it being understood that each Joint Lead Arranger shall have confirmed to the Hermes Agent that the terms of the Hermes Cover are acceptable), and all due and
owing Hermes Premium to be paid in connection therewith shall have been paid in full,
provided
it is understood and agreed that the Hermes Cover shall have been granted as soon as the Hermes Agent and/or KfW IPEX-Bank GmbH receives the
Declaration of Guarantee (
Gewährleistungs-Erklärung
) from Hermes and (y) all Loans and other financing to be made pursuant hereto shall be in material compliance with the Hermes Cover and all applicable requirements of law or
regulation.
6.08
Notice of Borrowing
. Prior to the making of each Loan, the Facility Agent shall have received the
Notice of Borrowing required by Section 2.03(a).
6.09
Solvency Certificate
. On each Borrowing Date, Parent shall
cause to be delivered to the Facility Agent a solvency certificate from a senior financial officer of Parent, in substantially the form of Exhibit K or otherwise reasonably acceptable to the Facility Agent, which shall be addressed to the Facility
Agent and each of the Lenders and dated such Borrowing Date, setting forth the conclusion that, after giving effect to the transactions hereunder (including the incurrence of all the financing contemplated with respect thereto and the purchase of
the Vessel), the Parent and its Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the Indebtedness incurred in connection therewith, and will not be left with unreasonably small capital with which to engage in
their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
6.10
Litigation
. On each Borrowing Date, other than as set forth on Schedule 6.10, there shall be no actions, suits or proceedings (governmental or private) pending or, to the Parent or the Borrower’s knowledge, threatened (i) with
respect to this Agreement or any other Credit Document or (ii) which has had, or, if adversely determined, could reasonably be expected to have, a Material Adverse Effect.
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The acceptance of the proceeds of each Loan shall constitute a representation and warranty
by the Borrower to the Facility Agent and each of the Lenders that all of the applicable conditions specified in Section 5, this Section 6 and Section 7 applicable to such Loan have been satisfied as of that time.
SECTION 7.
Conditions Precedent to the Delivery Date
. The obligation of each Lender to make Loans on the Delivery Date is subject
at the time of making such Loans to the satisfaction of the following conditions:
7.01
Delivery of Vessel
. On the
Delivery Date, the Vessel shall have been delivered in accordance with the terms of the Construction Contract, other than those changes that would not be materially adverse to the interests of the Lenders.
7.02
Collateral and Guaranty Requirements
. On or prior to the Delivery Date, the Collateral and Guaranty Requirements with respect
to the Vessel shall have been satisfied or the Facility Agent shall have waived such requirements (other than the Specified Requirements) and/or conditioned such waiver on the satisfaction of such requirements within a specified period of time.
7.03
Evidence of 20% Payment
. On the Delivery Date, the Borrower shall have provided funding for an amount in the
aggregate equal to the sum of at least (x) 20% of the Initial Construction Price for the Vessel (no less than [*] of which shall be funded from cash on hand), (y) [*] of the aggregate amount of Permitted Change Orders for the Vessel and
(z) [*] of the difference between the Final Construction Price and the Adjusted Construction Price for the Vessel (in each case, other than from proceeds of Loans, but with respect to clause (x) only, giving effect to proceeds from the
loans under the Term Loan Facilities used to finance up to 10% of the Initial Construction Price for the Vessel) and the Facility Agent shall have received a certificate from the officer of the Borrower to such effect.
7.04
Hermes Compliance; Compliance with Applicable Laws and Regulations
. On the Delivery Date, all Loans and other financing to be
made pursuant hereto shall be in material compliance with all applicable requirements of law or regulation and the Hermes Cover.
7.05
Opinion of Counsel
. (a) On the Delivery Date, the Facility Agent shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers),
special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent (for itself and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Secured
Creditors) and each of the Lenders and dated as of the Delivery Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on
Schedule 7.05.
(b) On the Delivery Date, the Facility Agent shall have received from O’Melveny & Myers LLP (or
another counsel reasonably acceptable to the Joint Lead Arrangers), special New York counsel to the Credit Parties, an opinion addressed to the Facility
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Agent and each of the Lenders and dated as of the Delivery Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint
Lead Arrangers, covering the matters set forth on Schedule 7.05.
(c) On the Delivery Date, the Facility Agent shall have
received from Graham Thompson & Co. (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bahamas counsel to the Credit Parties (or if the Vessel is not flagged in the Bahamas, counsel qualified in the jurisdiction
of the flag of the Vessel and reasonably satisfactory to the Facility Agent), an opinion addressed to the Facility Agent and each of the Lenders and dated as of the Delivery Date in substantially the form delivered to the Lenders prior to the
Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 7.05.
(d) On the Delivery Date, the Facility Agent shall have received from special Cox Hallett Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), Bermuda counsel to the Credit
Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated as of such Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead
Arrangers, covering the matters set forth on Schedule 7.05.
SECTION 8.
Representations and Warranties
. In order to
induce the Lenders to enter into this Agreement and to make the Loans, the Borrower or each Credit Party, as applicable, makes the following representations and warranties, in each case on a daily basis, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans:
8.01
Entity Status
. The Parent and each of the other Credit
Parties (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
8.02
Power and Authority
. Each of the Credit Parties has the power to enter into and perform this
Agreement and those of the other Credit Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorize the entry into and performance of this Agreement and such other Credit
Documents and such transactions. This Agreement constitutes legal, valid and binding obligations of the Parent and the Borrower enforceable in accordance with its terms and in entering into this Agreement and borrowing the Loans (in the case of the
Borrower), the Parent and the Borrower are each acting on their own account. Each other Credit Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Credit Party expressed to be a party thereto
enforceable in accordance with their respective terms.
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8.03
No Violation
. The entry into and performance of this Agreement, the other Credit
Documents and the transactions contemplated hereby and thereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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the constitutional documents of any Credit Party; or
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(c)
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except as set forth on Schedule 8.03, any agreement or document to which any member of the NCLC Group is a party or which is binding upon such Credit Party or any of
its assets, nor result in the creation or imposition of any Lien on a Credit Party or its assets pursuant to the provisions of any such agreement or document (it being understood that the Term Loan Facilities shall create a subordinated Lien on
certain Collateral).
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8.04
Governmental Approvals
. Except for the filing of those Security Documents
which require registration in the Companies Registries in England and Wales, the Federal Republic of Germany, the Bahamas, any state of the United States of America and/or with the Registrar of Companies in Bermuda, which filing must be completed
within 21 days of the execution and delivery of the relevant Security Document(s) in the case of England and Wales, and for the registration of the Vessel Mortgage through the Bahamas Maritime Authority (if the Vessel is flagged in the Bahamas) or
such other relevant authority (if the Vessel is flagged in another Acceptable Flag Jurisdiction), all authorizations, approvals, consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required
in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Credit Documents and the transactions contemplated thereby have been obtained or effected and are in full force and effect except for
matters in respect of (x) the Construction Risk Insurance and the Refund Guarantees (in each case only to the extent that such Collateral has not yet been delivered) and (y) Collateral to be delivered on the Delivery Date.
8.05
Financial Statements; Financial Condition
. (a)(i) The audited consolidated balance sheets of the Parent and its Subsidiaries
as at December 31, 2007, December 31, 2008 and December 31, 2009 and the unaudited consolidated balance sheets of the Parent and its Subsidiaries as at June 30, 2010 and the related consolidated statements of operations and
of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the case of the annual financial statements, an unqualified report from PricewaterhouseCoopers LLP, present fairly in all
material respects the consolidated financial condition of the Parent and its Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years or quarters, as the case may
be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of
accountants and disclosed therein).
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(ii) The
pro
forma
consolidated balance sheet of the Parent and its
Subsidiaries as of June 30, 2010 (after giving effect to the Transaction and the financing therefor), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date, presents a good faith estimate in all material respects
of the
pro
forma
consolidated financial position of the Parent and its Subsidiaries as of such date.
(b) Since
December 31, 2009, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
8.06
Litigation
. No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency
(including but not limited to investigative proceedings) are current or pending or, to the Parent or the Borrower’s knowledge, threatened, which might, if adversely determined, have a Material Adverse Effect.
8.07
True and Complete Disclosure
. Each Credit Party has fully disclosed in writing to the Facility Agent all facts relating to
such Credit Party which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.
8.08
Use of Proceeds
. All proceeds of the Loans may be used only to finance (i) up to 80% of the Adjusted Construction Price
of the Vessel and (ii) up to 100% of the Hermes Premium.
8.09
Tax Returns and Payments
. The NCLC Group have
complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all material Taxes due and payable by it; no material claims are being asserted against it with respect to Taxes, which might, if such claims were
successful, have a material adverse effect on the ability of any Credit Party to perform its obligations under the Credit Documents or could otherwise be reasonably expected to have a Material Adverse Effect. As at the Effective Date all amounts
payable by the Parent and the Borrower hereunder may be made free and clear of and without deduction for or on account of any Taxation in the Parent and the Borrower’s jurisdiction.
8.10
No Material Misstatements
. (a) All written information (other than the Projections, estimates and information of a general
economic nature or general industry nature) (the “
Information
”) concerning the Parent and its Subsidiaries, and the transactions contemplated hereby prepared by or on behalf of the foregoing or their representatives and made
available to any Lenders or any Agent in connection with the transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the Lenders or any Agent and as of
the Effective Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially
misleading in light of the circumstances under which such statements were made.
(b) The Projections and estimates and
information of a general economic nature prepared by or on behalf of the Parent, the Borrower or any of their respective representatives and that have been made available to any Lenders or any Agent in connection with the transactions contemplated
hereby (i) have been prepared in good faith based upon assumptions believed by the Parent, the Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from the Projections), as of the date
such Projections and estimates were furnished to the Lenders and as of the Effective Date, and (ii) as of the Effective Date, have not been modified in any material respect by the Parent or the Borrower.
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8.11
The Security Documents
. (a) None of the Collateral is subject to any Liens
except Permitted Liens.
(b) The security interests created under the Share Charge in favor of the Collateral Agent, as
pledgee, for the benefit of the Secured Creditors, constitute perfected security interests in the Share Charge Collateral described in the Share Charge, subject to no security interests of any other Person. No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security interests created in the Share Charge Collateral under the Share Charge other than with respect to that portion of the Share Charge Collateral constituting a “general
intangible” under the UCC. The filings on Form UCC-1 made pursuant to the Share Charge will perfect a security interest in the Collateral covered by the Share Charge to the extent a security interest in such Collateral may be perfected by such
filings.
(c) After the execution and registration thereof, the Vessel Mortgage will create, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on the Vessel in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the
Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on the Vessel may be subject to the Permitted Liens related thereto) and subject to no other Liens (other than
Permitted Liens related thereto).
(d) After the execution and delivery thereof and upon the taking of the actions mentioned
in the immediately succeeding sentence, each of the Security Documents will create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable fully perfected first priority security interest in and Lien
on all right, title and interest of the Credit Parties party thereto in the Collateral described therein, subject only to Permitted Liens. Subject to Sections 7.02, 8.04 and this Section 8.11 and the definition of “Collateral and Guaranty
Requirements,” no filings or recordings are required in order to perfect the security interests created under any Security Document except for filings or recordings which shall have been made on or prior to the execution of such Security
Document.
8.12
Capitalization
. All the Capital Stock, as set forth on Schedule 8.12, in the Borrower and each other
Credit Party (other than the Parent) is legally and beneficially owned directly or indirectly by the Parent and, except as permitted by Section 10.02, such structure shall remain so until the Maturity Date.
8.13
Subsidiaries
. On and as of the Initial Borrowing Date, other than in respect of Dormant Subsidiaries (i) the Parent has
no Subsidiaries other than those Subsidiaries listed on Schedule 8.13 which Schedule identifies the correct legal name, direct owner, percentage ownership and jurisdiction of organization of the Borrower and each such other Subsidiary on the date
hereof, (ii) all outstanding shares of the Borrower and each other Subsidiary of the Parent have been duly and validly issued, are fully paid and non-assessable and have been issued free of preemptive rights, and (iii) neither the Borrower
nor any Subsidiary of the Parent has outstanding any securities convertible into or exchangeable for its Capital Stock or
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outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its Capital Stock or any stock appreciation or similar rights.
8.14
Compliance with Statutes, etc
. The Parent and each of its Subsidiaries is in compliance in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership of its property, except such noncompliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.15
Winding-up, etc
. None of the events contemplated in clauses (a), (b), (c) or (d) of Section 11.05 has occurred
with respect to any Credit Party.
8.16
No Default
. No event has occurred which constitutes a Default or Event of
Default under or in respect of any Credit Document to which any Credit Party is a party or by which the Parent or any of its Subsidiaries may be bound (including (
inter alia
) this Agreement) and no event has occurred which constitutes a
default under or in respect of any agreement or document to which any Credit Party is a party or by which any Credit Party may be bound, except to an extent as could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.17
Pollution and Other Regulations
. Each of the Credit Parties:
(a) is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements
relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters),
including without limitation, laws, regulations, conventions and agreements relating to (i) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil,
hazard substances, petroleum and petroleum products and by-products (“
Materials of Environmental Concern
”) or (ii) Environmental Law;
(b) has all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Law (“
Environmental
Approvals
”) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted;
(c) has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential
liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys’
fees and expenses or fines or penalties, in each case arising out of, based on or resulting from (i) the presence or release or threat of release into the environment of any Materials of Environmental Concern at any location, whether or not owned by
such person or (ii) Environmental Claim,
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which is, or are, in each case, material; and
there are no circumstances that may prevent or interfere with such full compliance in the future.
There are no Environmental Claims pending or threatened against any of the Credit Parties which the Parent or the Borrower, in its
reasonable opinion, believes to be material.
There are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern, that the Parent or the Borrower reasonably believes could form the basis of any bona fide material
Environmental Claim against any of the Credit Parties.
8.18
Ownership of Assets
. Except as permitted by
Section 10.02, each member of the NCLC Group has good and marketable title to all its assets which is reflected in the audited accounts referred to in Section 8.05(a).
8.19
Concerning the Vessel
. As of the Delivery Date, (a) the name, registered owner, official number, and jurisdiction of
registration and flag of the Vessel shall be set forth on Schedule 8.19 (as updated from time to time by the Borrower pursuant to Section 9.13 with respect to flag jurisdiction, and otherwise (with respect to name, registered owner, official
number and jurisdiction of registration) upon advance notice and in a manner that does not interfere with the Lenders’ Liens on the Collateral,
provided
that each applicable Credit Party shall take all steps requested by the Collateral
Agent to preserve and protect the Liens created by the Security Documents on the Vessel) and (b) the Vessel is and will be operated in material compliance with all applicable law, rules and regulations.
8.20
Citizenship
. None of the Credit Parties has an establishment in the United Kingdom within the meaning of the Overseas
Companies Regulation 2009 or a place of business in the United States (in each case, except as already disclosed) or any other jurisdiction which requires any of the Security Documents to be filed or registered in that jurisdiction to ensure the
validity of the Security Documents to which it is a party unless (x) all such filings and registrations have been made or will be made as provided in Sections 7.02, 8.04 and 8.11 and the definition of “Collateral and Guaranty
Requirements” and (y) prompt notice of the establishment of such a place of business is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied. The Borrower and each other Credit Party which
owns or operates, or will own or operate, the Vessel at any time is, or will be, qualified to own and operate the Vessel under the laws of the Bahamas or such other jurisdiction in which the Vessel is permitted, or will be permitted, to be flagged
in accordance with the terms of Section 9.13.
8.21
Vessel Classification
. The Vessel is or will be as of the
Delivery Date, classified in the highest class available for vessels of its age and type with a classification society listed on Schedule 8.21 hereto or another internationally recognized classification society reasonably acceptable to the
Collateral Agent, free of any overdue conditions or recommendations.
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8.22
No Immunity
. None of the Credit Parties nor any of their respective assets
enjoys any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Credit Documents or by any relevant or applicable law.
8.23
Fees, Governing Law and Enforcement
. No fees or taxes, including, without limitation, stamp, transaction, registration or
similar taxes, are required to be paid to ensure the legality, validity, or enforceability of this Agreement or any of the other Credit Documents other than recording taxes which have been, or will be, paid as and to the extent due. Under the laws
of the Bahamas or any other jurisdiction where the Vessel is flagged, the choice of the laws of England as set forth in the Credit Documents which are stated to be governed by the laws of England is a valid choice of law, and the irrevocable
submission by each Credit Party to jurisdiction and consent to service of process and, where necessary, appointment by such Credit Party of an agent for service of process, in each case as set forth in such Credit Documents, is legal, valid, binding
and effective.
8.24
Form of Documentation
. Each of the Credit Documents is in proper legal form (under the laws of
England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is flagged or where the Credit Parties are domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in
evidence of each such Credit Document in England, the Bahamas and/or Bermuda it is not necessary that any Credit Document or any other document be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as
have been made, or will be made, in accordance with Section 5, 6, 7 and 8, as applicable.
8.25
Pari Passu or Priority
Status
. The claims of the Agents and the Lenders against the Parent or the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured creditors of the Parent or the Borrower (other than claims of such creditors
to the extent that they are statutorily preferred) and in priority to the claims of any creditor of the Parent or the Borrower who is also a Credit Party.
8.26
Solvency
. The Credit Parties, taken as a whole, are and shall remain, after the advance to them of the Loans or any of such Loans, solvent in accordance with the laws of Bermuda, the United
States, England and the Bahamas and in particular with the provisions of the Bankruptcy Code and the requirements thereof.
8.27
No Undisclosed Commissions
. There are and will be no commissions, rebates, premiums or other payments by or to or on account
of any Credit Party, their shareholders or directors in connection with the Transaction as a whole other than as disclosed to the Facility Agent or any other Agent in writing.
8.28
Completeness of Documentation
. The copies of the Management Agreements, Construction Contract, each Refund Guarantee, and to the extent applicable, each Supervision Agreement delivered to the
Facility Agent are true and complete copies of each such
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document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed
nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable, unless replaced by a management agreement or management agreements, refund guarantees or, to the extent applicable, a
supervision agreement, as the case may be, reasonably satisfactory to the Facility Agent.
8.29
Money Laundering
. Any
borrowing by the Borrower hereunder, and the performance of its obligations hereunder and under the other Security Documents, will be for its own account and will not, to the best of its knowledge, involve any breach by it of any law or regulatory
measure relating to “money laundering” as defined in Article 1 of the Directive (2005/EC/60) of the European Parliament and of the Council of the European Communities.
SECTION 9.
Affirmative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the Initial Borrowing
Date and until the Total Commitments have terminated and the Loans, together with interest, Commitment Commission and all other obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense
reimbursement claims for which no claim has been made):
9.01
Information Covenants
. The Parent will provide to the
Facility Agent (or will procure the provision of):
(a)
Quarterly Financial Statements
. Within 60 days after the close
of the first three fiscal quarters in each fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such quarterly accounting period and the related consolidated statements of operations and cash
flows, in each case for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, and in each case, setting forth comparative figures for the related periods in the
prior fiscal year, all of which shall be certified by a financial officer of the Borrower, subject to normal year-end audit adjustments and the absence of footnotes;
(b)
Annual Financial Statements
. Within 120 days after the close of each fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of operations and changes in shareholders’ equity and of cash flows for such fiscal year setting forth comparative figures for the preceding fiscal year and audited by independent certified public
accountants of recognized international standing, together with an opinion of such accounting firm (which opinion shall not be qualified as to scope of audit or as to the status of the Parent as a going concern) to the effect that such consolidated
financial statements fairly present, in all material respects, the financial position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP;
(c)
Valuations
. After the Delivery Date, together with delivery of the financial statements described in Section 9.01(b) for
each fiscal year, and at any other time within 15 days of a written request from the Facility Agent, appraisal reports of recent date (but in no event earlier than 90 days before the delivery of such reports) from two Approved Appraisers or such
other independent firm of shipbrokers or shipvaluers nominated by the Borrower and approved by the
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Facility Agent (acting on the instructions of the Required Lenders) or failing such nomination and approval, appointed by the Facility Agent (acting on such instructions) in its sole discretion
(each such valuation to be made without, unless reasonably required by the Facility Agent, physical inspection and on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing buyer and a
willing seller without taking into account the benefit of any charterparty or other engagement concerning the Vessel), stating the then current fair market value of the Vessel. All such appraisals shall be conducted by, and made at the expense of,
the Borrower (it being understood that the Facility Agent may and, at the request of the Lenders, shall, upon prior written notice to the Borrower (which notice shall identify the names of the relevant appraisal firms), obtain such appraisals and
that the cost of all such appraisals will be for the account of the Borrower);
provided
that, unless an Event of Default shall then be continuing, in no event shall the Borrower be required to pay for appraisal reports from two appraisers on
more than one occasion in any fiscal year of the Borrower, with the cost of any such reports in excess thereof to be paid by the Lenders on a
pro rata
basis;
(d)
Filings
. Promptly, copies of all financial information, proxy materials and other information and reports, if any, which the Parent or any of its Subsidiaries shall file with the Securities and
Exchange Commission (or any successor thereto);
(e)
Projections
. (i) As soon as practicable (and in any event
within 120 days after the close of each fiscal year), commencing with the fiscal year ending December 31, 2010, annual cash flow projections on a consolidated basis of the NCLC Group showing on a monthly basis advance ticket sales (for at least
12 months following the date of such statement) for the NCLC Group;
(ii) As soon as practicable (and in any event not later
than January 31 of each fiscal year):
|
|
(x)
|
a budget for the NCLC Group for such new fiscal year including a 12 month liquidity budget for such new fiscal year;
|
|
|
(y)
|
updated financial projections of the NCLC Group for at least the next five years (including an income statement and quarterly break downs for the first of those five
years); and
|
|
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(z)
|
an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings;
|
(f)
Officer’s Compliance Certificates
. As soon as practicable (and in any event within 60 days after the close of each of the
first three quarters of its fiscal year and within 120 days after the close of each fiscal year), a statement signed by one of the Parent’s financial officers substantially in the form of Exhibit M (commencing with the fourth quarter of the
fiscal year ending December 31, 2010) and such other information as the Facility Agent may reasonably request;
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(g)
Litigation
. On a quarterly basis, details of any material litigation, arbitration
or administrative proceedings affecting any Credit Party which are instituted and served, or, to the knowledge of the Parent or the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an
amount exceeding $25,000,000 or the equivalent in another currency);
(h)
Notice of Event of Default
. Promptly upon
(i) any Credit Party becoming aware thereof (and in any event within three Business Days), notification of the occurrence of any Event of Default and (ii) the Facility Agent’s request from time to time, a certificate stating whether
any Credit Party is aware of the occurrence of any Event of Default;
(i)
Status of Foreign Exchange Arrangements
.
Promptly upon reasonable request from any Joint Lead Arranger through the Facility Agent, an update on the status of the Parent and the Borrower’s foreign exchange arrangements with respect to the Vessel and the Term Loan Facilities, the Other
Export Credit Facility and this Agreement; and
(j)
Other Information
. Promptly, such further information in its
possession or control regarding its financial condition and operations and those of any company in the NCLC Group as the Facility Agent may reasonably request.
All accounts required under this Section 9.01 shall be prepared in accordance with GAAP and shall fairly represent in all material respects the financial condition of the relevant company.
9.02
Books and Records; Inspection
. The Parent will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in all material respects, in which materially proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Parent and its Subsidiaries in accordance with GAAP. The
Parent will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Facility Agent at the reasonable request of any Joint Lead Arranger to visit and inspect, under guidance of officers of the Parent or such
Subsidiary, any of the properties of the Parent or such Subsidiary, and to examine the books of account of the Parent or such Subsidiary and discuss the affairs, finances and accounts of the Parent or such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Facility Agent at the reasonable request of any such Joint Lead Arranger
may reasonably request.
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9.03
Maintenance of Property; Insurance
. The Parent will (x) keep, and will
procure that each of its Subsidiaries keeps, all of its real property and assets properly maintained and in existence and will comprehensively insure, and will procure that each of its Subsidiaries comprehensively insures, for such amounts and of
such types as would be effected by prudent companies carrying on business similar to the Parent or its Subsidiaries (as the case may be) and (y) as of the Delivery Date, maintain (or cause the Borrower to maintain) insurance (including, without
limitation, hull and machinery, war risks, loss of hire (if applicable), protection and indemnity insurance as set forth on Schedule 9.03 (the “
Required Insurance
”) with respect to the Vessel at all times.
9.04
Corporate Franchises
. The Parent will, and will cause each of its Subsidiaries to, do all such things as are necessary to
maintain its corporate existence (except as permitted by Section 10.02) in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and
maintain all franchises and rights necessary for the conduct of its business, except, in the case of Subsidiaries that are not Credit Parties, to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.
9.05
Compliance with Statutes, etc.
The Parent will, and will cause each of its Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions (including all laws and regulations relating to money laundering) imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property, except such non-compliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.06
Hermes Cover
. (a) The terms and conditions of the Hermes Cover are incorporated herein and in so far as they impose terms, conditions and/or obligations on the Collateral Agent and/or the
Facility Agent and/or the Hermes Agent and/or the Lenders in relation to the Borrower or any other Credit Party then such terms, conditions and obligations are binding on the parties hereto and further in the event of any conflict between the terms
of the Hermes Cover and the terms hereof the terms of the Hermes Cover shall be paramount and prevail. For the avoidance of doubt, neither the Parent nor the Borrower has any interest or entitlement in the proceeds of the Hermes Cover. In
particular, but without limitation, the Borrower shall pay any difference between the amount of the Loans drawn to pay the Hermes Premium, and the Hermes Premium.
(b) The Borrower shall at all times promptly pay all due and owing Hermes Premium.
9.07
End of Fiscal Years
. The Parent and the Borrower will maintain their fiscal year ends as in effect on the Effective Date.
9.08
Performance of Credit Document Obligations
. The Parent will, and will cause each of its Subsidiaries to, perform
all of its obligations under the terms of each mortgage, indenture, security agreement and other debt instrument (including, without limitation, the Credit Documents) by which it is bound, except such non-performances as could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
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9.09
Payment of Taxes
. The Parent will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which,
if unpaid, might become a Lien not otherwise permitted under Section 10.01,
provided
that neither the Parent nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with generally accepted accounting principles.
9.10
Further Assurances
. (a) The Borrower will, from time to time on being required to do so by the Facility Agent or the Hermes Agent, do or procure the doing of all such acts and/or execute or
procure the execution of all such documents in a form reasonably satisfactory to the Facility Agent or the Hermes Agent (as the case may be) as the Facility Agent or the Hermes Agent may reasonably consider necessary for giving full effect to any of
the Credit Documents or securing to the Agents and/or the Lenders or any of them the full benefit of the rights, powers and remedies conferred upon the Agents and/or the Lenders or any of them in any such Credit Document.
(b) The Borrower hereby authorizes the Collateral Agent to file one or more financing or continuation statements under the UCC (or any
non-U.S. equivalent thereto), and amendments thereto, relative to all or any part of the Collateral without the signature of the Borrower, where permitted by law. The Collateral Agent will promptly send the Borrower a copy of any financing or
continuation statements which it may file without the signature of the Borrower and the filing or recordation information with respect thereto.
(c) The Parent will cause each Subsidiary of the Parent which owns any direct interest in the Borrower promptly following such Subsidiary’s acquisition of such interest, to execute and deliver a
counterpart to the Share Charge (or, if requested by the Facility Agent, a joinder agreement in respect of the Intercreditor Agreement (if applicable)) and, in connection therewith, promptly execute and deliver all further instruments, and take all
further action, that the Facility Agent may reasonably require (including, without limitation, the provision of officers’ certificates, resolutions, good standing certificates and opinions of counsel, in each case to the reasonable satisfaction
of the Facility Agent).
(d) If at any time the Borrower shall enter into a Supervision Agreement pursuant to the Construction
Contract, the Borrower shall, substantially simultaneously therewith, duly authorize, execute and deliver a valid and effective first-priority legal assignment in favor of the Collateral Agent of all of the Borrower’s present and future
interests in and benefits under such Supervision Agreement, which such assignment shall be in form and substance reasonably acceptable to the Facility Agent, and customary for this type of transaction.
9.11
Ownership of Subsidiaries
. Other than “director qualifying shares” and similar requirements, the Parent shall at
all times directly or indirectly own 100% of the Capital Stock or other Equity Interests of the Borrower (except as permitted by Section 10.02).
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9.12
Consents and Registrations
. The Parent and the Borrower shall obtain (and shall,
at the request of the Facility Agent, promptly furnish certified copies to the Facility Agent of) all such authorizations, approvals, consents, licenses and exemptions as may be required under any applicable law or regulation to enable it or any
Credit Party to perform its obligations under, and ensure the validity or enforceability of, each of the Credit Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times.
Insofar as such filings or registrations have not been completed on or before the Initial Borrowing Date, the Borrower will procure the filing or registration within applicable time limits of each Security Document which requires filing or
registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents.
9.13
Flag of Vessel
. (a) The Borrower shall cause the Vessel to be registered under the laws and flag of the Bahamas or, provided that the requirements of a Flag Jurisdiction Transfer are
satisfied, another Acceptable Flag Jurisdiction. Notwithstanding the foregoing, the relevant Credit Party may transfer the Vessel to an Acceptable Flag Jurisdiction pursuant to the requirements set forth in the definition of “Flag Jurisdiction
Transfer”.
(b) Except as permitted by Section 10.02, the Borrower will own the Vessel and will procure that the
Vessel is traded within the NCLC Fleet from the Initial Borrowing Date until the Maturity Date.
(c) The Borrower will at all
times engage the Manager (or a replacement manager reasonably acceptable to the Facility Agent) to provide the commercial and technical management and crewing of the Vessel.
9.14
“Know Your Customer” and Other Similar Information
. The Parent will, and will cause the Credit Parties, to provide (i) the “Know Your Customer” information required
pursuant to the PATRIOT Act and applicable money laundering provisions and (ii) such other documentation and evidence necessary in order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable
laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or any Lender in connection with each of the Facility Agent’s, the Hermes Agent’s and each
Lender’s internal compliance regulations.
SECTION 10.
Negative Covenants
. The Parent and the Borrower hereby
covenant and agree that on and after the Initial Borrowing Date and until all Commitments have terminated and the Loans, together with interest, Commitment Commission and all other Credit Document Obligations incurred hereunder and thereunder, are
paid in full (other than contingent indemnification and expense reimbursement claims for which no claim has been made):
10.01
Liens
. The Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any Collateral, whether now owned or hereafter acquired, or sell any such Collateral subject
to an understanding or agreement, contingent or otherwise, to repurchase such Collateral (including sales of accounts receivable with recourse to the Parent or any of its Subsidiaries);
provided
that the provisions of this Section 10.01
shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as “
Permitted Liens
”):
(i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with generally accepted accounting principles;
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(ii) Liens imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for Borrowed Money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x) which do not in
the aggregate materially detract from the value of the Collateral and do not materially impair the use thereof in the operation of the business of the Parent or such Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Collateral subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule
10.01, without giving effect to any renewals or extensions of such Liens,
provided
that the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding on the Effective Date,
less any repayments of principal thereof;
(iv) Liens created pursuant to the Security Documents including,
without limitation, Liens created in relation to any Interest Rate Protection Agreement or Other Hedging Agreement;
(v) Liens arising out of judgments, awards, decrees or attachments with respect to which the Parent or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review,
provided
that the aggregate amount of all such judgments, awards, decrees or attachments shall not constitute an Event of Default under Section 11.09;
(vi) Liens in respect of seamen’s wages which are not past due and other maritime Liens arising in the ordinary
course of business up to an aggregate amount of $10,000,000;
(vii) Liens securing the obligations under each
Term Loan Facility and any interest rate protection agreement or other hedging agreement in connection therewith,
provided
that such Liens are subject to the provisions of the Intercreditor Agreement; and
(viii) Liens which rank after the Liens created by the Security Documents to secure the performance of bids, tenders,
bonds or contracts;
provided
that (a) such bids, tenders, bonds or contracts directly relate to the Vessel, are incurred in the ordinary course of business and do not relate to the incurrence of Indebtedness for Borrowed Money, and
(b) at any time outstanding, the aggregate amount of Liens under this clause (vii) shall not secure greater than $25,000,000 of obligations.
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In connection with the granting of Liens described above in this Section 10.01 by the Parent or any of
its Subsidiaries, the Facility Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien subordination agreements in favor of
the holder or holders of such Liens, in respect of the item or items of equipment or other assets subject to such Liens).
10.02
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc.
(a) The Parent will not, and will not permit any of
its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of all or substantially all of its property or assets, or make any
Acquisitions, except that:
(i) any Subsidiary of the Parent (other than the Borrower) may merge, amalgamate or
consolidate with and into, or be dissolved or liquidated into, the Parent or other Subsidiary of the Parent (other than the Borrower), so long as (x) in the case of any such merger, amalgamation, consolidation, dissolution or liquidation
involving the Parent, the Parent is the surviving or continuing entity of any such merger, amalgamation, consolidation, dissolution or liquidation and (y) any security interests granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation, dissolution or
liquidation) and all actions required to maintain said perfected status have been taken;
(ii) the Parent and
any Subsidiary of the Parent may make dispositions of assets so long as such disposition is permitted pursuant to Section 10.02(b);
(iii) the Parent and any Subsidiary of the Parent (other than the Borrower) may make Acquisitions;
provided
that (x) the Parent provides evidence reasonably satisfactory to the Required
Lenders that the Parent will be in compliance with the financial undertakings contained in Sections 10.06 to 10.09 after giving effect to such Acquisition on a pro forma basis and (y) no Default or Event of Default will exist after giving
effect to such Acquisition; and
(iv) the Parent and any Subsidiary of the Parent (other than the Borrower) may
establish new Subsidiaries.
(b) The Parent will not, and will not permit any other company in the NCLC Group to, either in a
single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its assets except that the following disposals shall not be
taken into account:
(i) dispositions made in the ordinary course of trading of the disposing entity (excluding
a disposition of the Vessel or other Collateral) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for value in the ordinary
course of trading;
(ii) dispositions of cash raised or borrowed for the purposes for which such cash was
raised or borrowed;
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(iii) dispositions of assets (other than the Vessel or other Collateral)
owned by any member of the NCLC Group in exchange for other assets comparable or superior as to type and value;
(iv) a vessel (other than the Vessel or other Collateral) or any other asset owned by any member of the NCLC Group (other
than the Borrower) may be sold,
provided
such sale is on a willing seller willing buyer basis at or about market rate and at arm’s length subject always to the provisions of any loan documentation for the financing of such vessel or
other asset;
(v) the Credit Parties may sell, lease or otherwise dispose of the Vessel or sell 100% of the
Capital Stock of the Borrower,
provided
that such sale is made at fair market value, the Total Commitment is permanently reduced to $0, and the Loans are repaid in full; and
(vi) Permitted Chartering Arrangements.
10.03
Dividends
. The Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Parent may pay Dividends to another member of the NCLC Group;
provided
that the
Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, LLC or Arrasas Limited shall be received promptly
by the Parent directly or indirectly by way of Dividend;
(ii) the Parent 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 NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable as a
result of any member of the NCLC 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 NCLC Group; and
(iii) at any time following the listing of the ordinary Capital Stock of the Parent on an Approved Stock Exchange, the
Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on January 1, 2010 and ending on the date prior to such Dividend for which
financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to
Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided to the Facility Agent pursuant to Section 9.01 is less than 5.50:1.00.
10.04
Advances, Investments and Loans
. The Parent will not, and will not permit any other member of the NCLC Group to, purchase or
acquire any margin stock (or other Equity Interests) or any other asset, or make any capital contribution to or other investment in
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any other Person (each of the foregoing an “
Investment
” and, collectively, “
Investments
”), in each case either in a single transaction or in a series of
transactions (whether related or not), except that the following shall be permitted:
(i) Investments on
arm’s length terms;
(ii) Investments for its use in its ordinary course of business;
(iii) Investments the cost of which is less than or equal to its fair market value at the date of acquisition; and
(iv) Investments permitted by Section 10.02.
10.05
Transactions with Affiliates
. (a) The Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of such Person (each of the foregoing, an “
Affiliate Transaction
”) involving aggregate consideration in excess of $10,000,000, unless
such Affiliate Transaction is on terms that are not materially less favorable to the Parent or any Subsidiary of the Parent than those that could have been obtained in a comparable transaction by such Person with an unrelated Person.
(b) The provisions of Section 10.05(a) shall not apply to the following:
(i) transactions between or among the Parent and/or any Subsidiary of the Parent (or an entity that becomes a Subsidiary
of the Parent as a result of such transaction) and any merger, consolidation or amalgamation of the Parent or any Subsidiary of the Parent and any direct parent of the Parent, any Subsidiary of the Parent or, in the case of a Subsidiary of the
Parent, the Parent;
provided
that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent or such Subsidiary of the Parent, as the case may be, and such
merger, consolidation or amalgamation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
(ii) Dividends permitted by Section 10.03 and Investments permitted by Section 10.04;
(iii) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Parent or any Subsidiary
of the Parent, any direct or indirect parent of the Parent;
(iv) payments by the Parent or any Subsidiary of
the Parent to a Permitted Holder made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the board of directors of the Parent in good faith;
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(v) any agreement to pay, and the payment of, monitoring, management,
transaction, advisory or similar fees (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of (i) 1% of Consolidated EBITDA of the Parent and (ii) $9,000,000, plus reasonable out of pocket costs
and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (A)(1) above originally), plus (B) 2.0% of the value of transactions
with respect to which an Affiliate provides any transaction, advisory or other services, plus (C) so long as no Event of Default has occurred and is continuing, in the event of an initial public offering, the present value of all future amounts
payable pursuant to any agreement referred to in clause (A)(1) above in connection with the termination of such agreement with a Permitted Holder;
provided
that if any such payment pursuant to clause (C) is not permitted to be paid as a
result of an Event of Default, such payment shall accrue and may be payable when no Event of Default is continuing to the extent that no further Event of Default would result therefrom;
(vi) transactions in which the Parent or any Subsidiary of the Parent, as the case may be, delivers to the Facility Agent
a letter from an independent financial advisor stating that such transaction is fair to the Parent or any Subsidiary of the Parent, as the case may be, from a financial point of view or meets the requirements of Section 10.05(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by
a majority of the board of directors of the Parent in good faith;
(viii) any agreement as in effect as of the
Effective Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the
Effective Date) or any transaction contemplated thereby as determined in good faith by the Parent;
(ix)(A)
transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Agreement, which are fair to the Parent and its Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Parent, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Subsidiaries of the Parent entered into in the ordinary course of business and consistent with past practice or industry norm;
(x) the issuance of Equity Interests (other than Disqualified Stock) of the Parent to any Person;
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(xi) the issuances of securities or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Parent or any direct or indirect parent of the
Issuer or of a Subsidiary of the Parent, as appropriate, in good faith;
(xii) any contribution to the capital
of the Parent;
(xiii) transactions between the Parent or any Subsidiary of the Parent and any Person, a
director of which is also a director of the Parent or a Subsidiary of the Parent or any direct or indirect parent of the Parent;
provided
,
however
, that such director abstains from voting as a director of the Parent or a Subsidiary of
the Parent or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xiv) pledges of Equity Interests of Subsidiaries of the Parent (other than the Borrower);
(xv) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management
purposes in the ordinary course of business;
(xvi) any employment agreements entered into by the Parent or any
Subsidiary of the Parent in the ordinary course of business; and
(xvii) transactions undertaken in good faith
(as certified by a responsible financial or accounting officer of the Parent in an officer’s certificate) for the purpose of improving the consolidated tax efficiency of the Parent and its Subsidiaries and not for the purpose of circumventing
any provision set forth in this Agreement.
10.06
Free Liquidity
. The Parent will not permit the Free Liquidity to be
less than $50,000,000 at any time.
10.07
Total Net Funded Debt to Total Capitalization
. The Parent will not permit the
ratio of Total Net Funded Debt to Total Capitalization to be greater than 0.70:1.00 at any time.
10.08
Collateral
Maintenance
. The Borrower will not permit the Appraised Value of the Vessel (such value, the “
Vessel Value
”) to be less than 125% of the aggregate outstanding principal amount of Loans at such time;
provided
that, so long
as any non-compliance in respect of this Section 10.08 is not caused by a voluntary Collateral Disposition, such non-compliance shall not constitute a Default or an Event of Default so long as within 10 Business Days of the occurrence of such
default, the Borrower shall either (i) post additional collateral reasonably satisfactory to the Required Lenders in favor of the Collateral Agent (it being understood that cash collateral comprised of Dollars is satisfactory and that it shall
be valued at par), pursuant to security documentation reasonably satisfactory in form and substance to the Collateral Agent and the Joint Lead Arrangers, in an aggregate amount sufficient to cure such non-compliance (and shall at all times during
such period and prior to satisfactory
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completion thereof, be diligently carrying out such actions) or (ii) repay Loans in an amount sufficient to cure such non-compliance;
provided
,
further
, that, subject to the
last sentence in Section 9.01(c), the covenant in this Section 10.08 shall be tested no more than once per calendar year beginning with the first calendar year end to occur after the Delivery Date in the absence of the occurrence of an
Event of Default which is continuing.
10.09
Consolidated EBITDA to Consolidated Debt Service
. The Parent will not
permit the ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group at the end of any fiscal quarter, computed for the period of the four consecutive fiscal quarters ending as at the end of the relevant fiscal quarter, to be less
than 1.25:1.00 unless the Free Liquidity of the NCLC Group at all times during such period of four consecutive fiscal quarters ending as at the end of such fiscal quarter was equal to or greater than $100,000,000.
10.10
Business; Change of Name
. The Parent will not, and will not permit any of its Subsidiaries to, change its name, change its
address as indicated on Schedule 14.03A to an address outside the State of Florida, or make or threaten to make any substantial change in its business as presently conducted or cease to perform its current business activities or carry on any other
business which is substantial in relation to its business as presently conducted if doing so would imperil the security created by any of the Security Documents or affect the ability of the Parent or its Subsidiaries to duly perform its obligations
under any Credit Document to which it is or may be a party from time to time (it being understood that name changes and changes of address to an address outside the State of Florida shall be permitted so long as new, relevant Security Documents are
executed and delivered (and if necessary, recorded) in a form reasonably satisfactory to the Collateral Agent), in each case in the reasonable opinion of the Facility Agent;
provided
that any new leisure or hospitality venture embarked upon
by any member of the NCLC Group (other than the Parent) shall not constitute a substantial change in its business.
10.11
Subordination of Indebtedness
. The Parent shall procure that any and all of its Indebtedness with any other Credit Party and/or any shareholder of the Parent is at all times fully subordinated to the Credit Document Obligations. The Parent
shall not make or permit to be made any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any shareholder of the Parent. Upon the occurrence of an Event
of Default, the Parent shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any other Credit Party.
10.12
Activities of Borrower, etc
. The Parent will not permit the Borrower to, and the Borrower will not:
(i) issue or enter into any guarantee or indemnity or otherwise become directly or contingently liable for the obligations
of any other Person, other than in the ordinary course of its business as owner of the Vessel;
(ii) incur any
Indebtedness other than under the Credit Documents or other than in the ordinary course of its business as owner of the Vessel; and
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(iii) engage in any business or own any significant assets or have any
material liabilities other than (i) its ownership of the Vessel and (ii) those liabilities which it is responsible for under this Agreement and the other Credit Documents to which it is a party,
provided
that the Borrower may also
engage in those activities that are incidental to (x) the maintenance of its existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
10.13
Material Amendments or Modifications of Construction Contracts
. The Parent will not, and will not permit any of its
Subsidiaries to, make any material amendments, modifications or changes to any term or provision of the Construction Contract that would amend, modify or change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess
of 7.5% in the aggregate, in each case unless such amendment, modification or change is approved in advance by the Facility Agent and the Hermes Agent and the same could not reasonably be expected to be adverse to the interests of the Lenders or the
Hermes Cover.
10.14
No Place of Business
. None of the Credit Parties shall establish a place of business in the United
Kingdom or the United States of America, with the exception of those places of business already in existence on the Effective Date, unless prompt notice thereof is given to the Facility Agent and the requirements set forth in Section 9.10 have
been satisfied.
SECTION 11.
Events of Default
. Upon the occurrence of any of the following specified events (each an
“
Event of Default
”):
11.01
Payments
. The Borrower or any other Credit Party does not pay on the due
date any amount of principal or interest on any Loan (
provided
,
however
, that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank or banks through whom the relevant funds are being
transmitted no Event of Default shall occur for the purposes of this Section 11.01 until the expiry of three Business Days following the date on which such payment is due) or, within three days of the due date any other amount, payable by it
under any Credit Document to which it may at any time be a party, at the place and in the currency in which it is expressed to be payable; or
11.02
Representations, etc.
Any representation, warranty or statement made or repeated in, or in connection with, any Credit Document or in any accounts, certificate, statement or opinion delivered
by or on behalf of any Credit Party thereunder or in connection therewith is materially incorrect when made or would, if repeated at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct; or
11.03
Covenants
. Any Credit Party shall (i) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 9.01(h), Section 9.06, Section 9.11, or Section 10 or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement or
any other Credit Document and, in the case of this clause (ii), such default shall continue unremedied for a period of 30 days after written notice to the Borrower by the Facility Agent or any of the Lenders; or
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11.04
Default Under Other Agreements
. (a) Any event of default occurs under any
financial contract or financial document relating to any Indebtedness of any member of the NCLC Group;
(b) Any such
Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise;
(c) Any Lien over any assets of any member of the NCLC Group becomes enforceable; or
(d) Any other Indebtedness of any member of the NCLC Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any security for the same becomes
enforceable by reason of default,
provided
that:
(i) it shall not be a Default or Event of Default under this Section 11.04 unless the principal amount of the
relevant Indebtedness as described in preceding clauses (a) through (d), inclusive, exceeds $15,000,000;
(ii) no Event of Default will arise under clauses (a), (c) and/or (d) until the earlier of (x) 30 days
following the occurrence of the related event of default, Lien becoming enforceable or Indebtedness becoming capable of being declared due prematurely, as the case may be, and (y) the acceleration of the relevant Indebtedness or the enforcement
of the relevant Lien; and
(iii) if at any time hereafter the Parent or any other member of the NCLC Group
agrees to the incorporation of a cross default provision into any financial contract or financial document relating to any Indebtedness that is more onerous than this Section 11.04, then the Parent shall immediately notify the Facility Agent
and that cross default provision shall be deemed to apply to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the term of that financial contract or financial document;
or
11.05
Bankruptcy, etc.
(a) Other than as expressly permitted in Section 10, any order is made or an effective
resolution passed or other action taken for the suspension of payments or dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of the NCLC Group; or
(b) Any member of the NCLC Group shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “
Bankruptcy Code
”); or an involuntary case is commenced against any member of the NCLC Group, and the petition is not dismissed within 45 days
after the filing thereof,
provided
,
however
, that during the pendency of such period, each Lender shall be relieved of its obligation to extend credit hereunder; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of any member of the NCLC Group, to operate all or any substantial portion of the business of
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any member of the NCLC Group, or any member of the NCLC Group commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any member of the NCLC Group, or there is commenced against any member of the NCLC Group any such proceeding which remains undismissed for a period of
45 days after the filing thereof, or any member of the NCLC Group is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or any member of the NCLC Group makes a general
assignment for the benefit of creditors; or any Company action is taken by any member of the NCLC Group for the purpose of effecting any of the foregoing; or
(c) A liquidator (subject to Section 11.05(e)), trustee, administrator, receiver, manager or similar officer is appointed in respect of any member of the NCLC Group or in respect of all or any
substantial part of the assets of any member of the NCLC Group and in any such case such appointment is not withdrawn within 30 days (in this Section 11.05, the “
Grace Period
”) unless the Facility Agent considers in its sole
discretion that the interest of the Lenders and/or the Agents might reasonably be expected to be adversely affected in which event the Grace Period shall not apply; or
(d) Any member of the NCLC Group becomes or is declared insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any
applicable law; or
(e) Anything analogous to or having a substantially similar effect to any of the events specified in this
Section 11.05 shall have occurred under the laws of any applicable jurisdiction (subject to the analogous grace periods set forth herein); or
11.06
Total Loss
. An Event of Loss shall occur resulting in the actual or constructive total loss of the Vessel or the agreed or compromised total loss of the Vessel and the proceeds of the
insurance in respect thereof shall not have been received within 150 days of the event giving rise to such Event of Loss; or
11.07
Security Documents
. At any time after the execution and delivery thereof, any of the Security Documents shall cease to be in
full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security interest in,
and Lien on, all of the material Collateral), in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except in connection with Permitted Liens), and subject to no other Liens (except Permitted Liens), or any
“event of default” (as defined in the Vessel Mortgage) shall occur in respect of the Vessel Mortgage; or
11.08
Guaranties
. (a) The Parent Guaranty, or any provision thereof, shall cease to be in full force or effect as to the Parent, or the Parent (or any Person acting by or on behalf of the Parent) shall deny or disaffirm the Parent’s
obligations under the Parent Guaranty; or
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(b) After the execution and delivery thereof, the Hermes Cover, or any material provision
thereof, shall cease to be in full force or effect, or Hermes (or any Person acting by or on behalf of the Parent or the Hermes Agent) shall deny or disaffirm Hermes’ obligations under the Hermes Cover; or
11.09
Judgments
. Any distress, execution, attachment or other process affects the whole or any substantial part of the assets of
any member of the NCLC Group and remains undischarged for a period of 21 days or any uninsured judgment in excess of $15,000,000 following final appeal remains unsatisfied for a period of 30 days in the case of a judgment made in the United States
and otherwise for a period of 60 days; or
11.10
Cessation of Business
. Subject to Section 10.02, any member of
the NCLC Group shall cease to carry on all or a substantial part of its business; or
11.11
Revocation of Consents
. Any
authorization, approval, consent, license, exemption, filing, registration or notarization or other requirement necessary to enable any Credit Party to comply with any of its obligations under any of the Credit Documents to which it is a party shall
have been materially adversely modified, revoked or withheld or shall not remain in full force and effect and within 90 days of the date of its occurrence such event is not remedied to the satisfaction of the Required Lenders and the Required
Lenders consider in their sole discretion that such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and the Lenders or any of them; provided that the Borrower shall not be entitled
to the aforesaid 90 day period if the modification, revocation or withholding of the authorization, approval or consent is due to an act or omission of any Credit Party and the Required Lenders are satisfied in their sole discretion that the
interests of the Agents or the Lenders might reasonably be expected to be materially adversely affected; or
11.12
Unlawfulness
. At any time it is unlawful or impossible for:
(i) any Credit Party to perform any of its
obligations under any Credit Document to which it is a party; or
(ii) the Agents or the Lenders, as
applicable, to exercise any of their rights under any of the Credit Documents;
provided
that no Event of Default shall be deemed to
have occurred (x) (except where the unlawfulness or impossibility adversely affects any Credit Party’s payment obligations under this Agreement and/or the other Credit Documents (the determination of which shall be in the Facility
Agent’s sole discretion) in which case the following provisions of this Section 11.12 shall not apply) where the unlawfulness or impossibility prevents any Credit Party from performing its obligations (other than its payment obligations
under this Agreement and the other Credit Documents) and is cured within a period of 21 days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Credit Party, within the aforesaid period, performs its
obligation(s), and (y) where the Facility Agent and/or the Lenders, as applicable, could, in its or their sole discretion, mitigate the consequences of unlawfulness or impossibility in the manner described in Section 2.10(a) (it being
understood that the costs of mitigation shall be determined in accordance with Section 2.10(a)); or
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11.13
Insurances
. Borrower shall have failed to insure the Vessel in the manner
specified in this Agreement or failed to renew the Required Insurance at least 10 Business Days prior to the date of expiry thereof and, if requested by the Facility Agent, produce prompt confirmation of such renewal to the Facility Agent; or
11.14
Disposals
. The Borrower or any other member of the NCLC Group shall have concealed, removed, or permitted to be
concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other creditor; or
11.15
Government Intervention
. The authority of any member of the NCLC Group in the conduct of its business shall be wholly or substantially curtailed by any seizure or intervention by or on behalf
of any authority and within 90 days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Facility Agent reasonably considers that the relevant occurrence is or might be expected to become materially
prejudicial to the interests, rights or position of the Agents and/or the Lenders; provided that the Borrower shall not be entitled to the aforesaid 90 day period if the seizure or intervention executed by any authority is due to an act or omission
of any member of the NCLC Group and the Facility Agent is satisfied, in its sole discretion, that the interests of the Agents and/or the Lenders might reasonably be expected to be materially adversely affected; or
11.16
Change of Control
. A Change of Control shall occur; or
11.17
Material Adverse Change
. Any event shall occur which results in a Material Adverse Effect; or
11.18
Repudiation of Construction Contract or other Material Documents
. Any party to the Construction Contract, any Credit
Document or any other material documents related to the Credit Document Obligations hereunder shall repudiate the Construction Contract, such Credit Document or such material document in any way;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Facility Agent, upon the
written request of the Required Lenders and after having informed the Hermes Agent of such written request, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of any Agent or any Lender
to enforce its claims against any Credit Party (
provided
that, if an Event of Default specified in Section 11.05 shall occur, the result which would occur upon the giving of written notice by the Facility Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitments terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all Credit Document Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; and (iii) enforce, as Collateral Agent, all of
the Liens and security interests created pursuant to the Security Documents.
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SECTION 12.
Agency and Security Trustee Provisions
.
12.01
Appointment and Declaration of Trust
. (a) The Lenders hereby designate KfW IPEX-Bank GmbH, as Facility Agent (for purposes
of this Section 12, the term “
Facility Agent
” shall include KfW IPEX-Bank GmbH (and/or any of its Affiliates) in its capacity as Collateral Agent under the Security Documents and as CIRR Agent) to act as specified herein and in
the other Credit Documents. The Lenders hereby further designate Nordea Bank Norge ASA, as Documentation Agent, to act as specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes the Agents to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agents by the terms hereof and thereof and such other powers as are reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through its respective officers, directors, agents, employees
or affiliates and, may transfer from time to time any or all of its rights, duties and obligations hereunder and under the relevant Credit Documents (in accordance with the terms thereof) to any of its banking affiliates.
(b) KfW IPEX Bank GmbH in its capacity as Collateral Agent pursuant to the Security Documents declares that it shall hold the Collateral
in trust for the Secured Creditors in accordance with the terms contained in the Intercreditor Agreement. The Collateral Agent shall have the right to delegate a co-agent or sub-agent from time to time to perform and benefit from any or all of
rights, duties and obligations hereunder and under the relevant Security Documents (in accordance with the terms thereof and of the Security Trust Deed) and, in the event that any such duties or obligations are so delegated, the Collateral Agent is
hereby authorized to enter into additional Security Documents or amendments to the then existing Security Documents to the extent it deems necessary or advisable to implement such delegation and, in connection therewith, the Parent will, or will
cause the relevant Subsidiary to, use its commercially reasonable efforts to promptly deliver any opinion of counsel that the Facility Agent may reasonably require to the reasonable satisfaction of the Facility Agent.
(c) The Lenders hereby designate Commerzbank Aktiengesellschaft, as Hermes Agent, which Agent shall be responsible for any and all
communication, information and negotiation required with Hermes in relation to the Hermes Cover. All notices and other communications provided to the Hermes Agent shall be mailed, telexed, telecopied, delivered or electronic mailed to the Notice
Office of the Hermes Agent.
12.02
Nature of Duties
. The Agents shall have no duties or responsibilities except those
expressly set forth in this Agreement and the Security Documents. None of the Agents nor any of their respective officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder, under any
other Credit Document, under the Hermes Cover or in connection herewith or therewith, unless caused by such Person’s gross negligence or willful misconduct (any such liability limited to the applicable Agent to whom such Person relates). The
duties of each of the Agents shall be mechanical and
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administrative in nature; none of the Agents shall have by reason of this Agreement or any other Credit Document any fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agents any obligations in respect of this Agreement, any other Credit Document or the Hermes Cover except as expressly set forth herein
or therein.
12.03
Lack of Reliance on the Agents
. Independently and without reliance upon the Agents, each Lender, to
the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Credit Parties in connection with the making and the continuance of the Loans and the
taking or not taking of any action in connection herewith, (ii) its own appraisal of the creditworthiness of the Credit Parties and (iii) its own appraisal of the Hermes Cover and, except as expressly provided in this Agreement, none of
the Agents shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any
time or times thereafter. None of the Agents shall be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement, any other Credit Document, the Hermes Cover or the financial condition of the Credit Parties or any of them
or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, any other Credit Document, the Hermes Cover, or the financial condition of the Credit Parties or any
of them or the existence or possible existence of any Default or Event of Default.
12.04
Certain Rights of the Agents
.
If any of the Agents shall request instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement, any other Credit Document or the Hermes Cover, the Agents shall be entitled to
refrain from such act or taking such action unless and until the Agents shall have received instructions from the Required Lenders; and the Agents shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Agents as a result of any of the Agents acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.
12.05
Reliance
. Each of the Agents shall be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the applicable Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement, any other Credit Document, the Hermes Cover and its duties hereunder and thereunder, upon advice of counsel selected by the Facility Agent.
12.06
Indemnification
. To the extent any of the Agents is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify the applicable Agents, in proportion to their respective “percentages” as used in determining the Required Lenders (without regard to the existence of any Defaulting Lenders), for and against any and all
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liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Agents in performing their respective duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document;
provided
that no Lender shall be liable to an
Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct.
12.07
The Agents in their Individual Capacities
. With respect to its obligation to make Loans under this Agreement, each of the
Agents shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lenders,” “Secured
Creditors”, “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each of the Agents in their respective individual capacity. Each of the Agents may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any Credit Party or any Affiliate of any Credit Party as if it were not performing the duties specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
12.08
Resignation by an Agent
. (a) Any Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business
Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon notice of resignation by an Agent pursuant to clause (a) above, the Required Lenders shall appoint a successor Agent
hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower;
provided
that the Borrower’s consent shall not be required pursuant to this clause (b) if an Event of Default exists at
the time of appointment of a successor Agent.
(c) If a successor Agent shall not have been so appointed within the 15
Business Day period referenced in clause (a) above, the applicable Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and surplus of
not less than $500,000,000 as successor Agent who shall serve as the applicable Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Agent as provided above;
provided
that the Borrower’s consent shall
not be required pursuant to this clause (c) if an Event of Default exists at the time of appointment of a successor Agent.
(d) If no successor Agent has been appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such
notice of resignation was given by the applicable Agent, the applicable Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Credit Document
until such time, if any, as the Required Lenders appoint a successor Agent as provided above.
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12.09
The Joint Lead Arrangers
. Notwithstanding any other provision of this Agreement
or any provision of any other Credit Document, each of Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA, is hereby appointed as a Joint Lead Arranger by the Lenders to act as
specified herein and in the other Credit Documents. Each of the Joint Lead Arrangers in their respective capacities as such shall have only the limited powers, duties, responsibilities and liabilities with respect to this Agreement or the other
Credit Documents or the transactions contemplated hereby and thereby as are set forth herein or therein; it being understood and agreed that the Joint Lead Arrangers shall be entitled to all indemnification and reimbursement rights in favor of any
of the Agents as provided for under Sections 12.06 and 14.01. Without limitation of the foregoing, none of the Joint Lead Arrangers shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect
of any Lender or any other Person.
12.10
Impaired Agent
. (a) If, at any time, any Agent becomes an Impaired Agent, a
Credit Party or a Lender which is required to make a payment under the Credit Documents to such Agent in accordance with Section 4.03 may instead either pay that amount directly to the required recipient or pay that amount to an
interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Credit
Party or the Lender making the payment and designated as a trust account for the benefit of the party or parties hereto beneficially entitled to that payment under the Credit Documents. In each case such payments must be made on the due date for
payment under the Credit Documents.
(b) All interest accrued on the amount standing to the credit of the trust account shall
be for the benefit of the beneficiaries of that trust account
pro
rata
to their respective entitlements.
(c) A
party to this Agreement which has made a payment in accordance with this Section 12.10 shall be discharged of the relevant payment obligation under the Credit Documents and shall not take any credit risk with respect to the amounts standing to
the credit of the trust account.
(d) Promptly upon the appointment of a successor Agent in accordance with
Section 12.11, each party to this Agreement which has made a payment to a trust account in accordance with this Section 12.10 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount
(together with any accrued interest) to the successor Agent for distribution in accordance with Section 2.04
12.11
Replacement of an Agent
. (a) After consultation with the Parent, the Required Lenders may, by giving 30 days’ notice to an Agent (or, at any time such Agent is an Impaired Agent, by giving any shorter notice determined by the
Required Lenders) replace such Agent by appointing a successor Agent (subject to Section 12.08(b) and (c)).
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(b) The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at
the expense of the Borrower) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Credit Documents.
(c) The appointment of the successor Agent shall take effect on the date specified in the notice from the Required Lenders to
the retiring Agent. As from such date, the retiring Agent shall be discharged from any further obligation in respect of the Credit Documents but shall remain entitled to the benefit of this Section 12.11 (and any agency fees for the account of
the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d) Any successor Agent and each of the
other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party to this Agreement.
12.12
Resignation by the Hermes Agent
. (a) The Hermes Agent may resign from the performance of all its functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor Hermes Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Hermes
Agent, the Required Lenders shall appoint a successor Hermes Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower; provided that the Borrower’s consent shall not be required
pursuant to this clause (b) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(c) If
a successor Hermes Agent shall not have been so appointed within such 15 Business Day period, the Hermes Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust
company with capital and surplus of not less than $500,000,000 as successor Hermes Agent who shall serve as Hermes Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Hermes Agent as provided above; provided
that the Borrower’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(d) If no successor Hermes Agent has been appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such notice of resignation was given by the Hermes Agent, the
Hermes Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Hermes Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Hermes Agent as provided above.
SECTION 13.
Benefit of Agreement
. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, subject to the provisions of this Section 13.
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13.01
Assignments and Transfers by the Lenders
. (a) Subject to
Section 13.06 and 13.07, any Lender (or any Lender together with one or more other Lenders, each an “
Existing Lender
”) may:
(i) with the consent of the Hermes Agent and the written consent of the Federal Republic of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
)
and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für Forderungsabtretungen-AB (FAB)
), assign any of its rights or transfer by novation any of its rights and obligations under
this Agreement or any Credit Document (including, without limitation, all of the Commitments and outstanding Loans, or if less than all, a portion equal to at least $10,000,000 in the aggregate for such Lender’s rights and obligations), to
(x) its parent company and/or any Affiliate of such assigning or transferring Lender which is at least 50% owned (directly or indirectly) by such Lender or its parent company or (y) in the case of any Lender that is a fund that invests in
bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor, or
(ii) with the consent of the Hermes Agent, the written consent of the Federal Republic of Germany, where required
according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für Forderungsabtretungen-AB (FAB)
)
and consent of the Borrower (which consent, in the case of the Borrower (x) shall not be unreasonably withheld or delayed, (y) shall not be required if a Default or Event of Default shall have occurred and be continuing at such time and
(z) shall be deemed to have been given ten Business Days after the Existing Lender has requested it in writing unless consent is expressly refused by the Borrower within that time) assign any of its rights in or transfer by novation any of its
rights in and obligations under all of its Commitments and outstanding Loans, or if less than all, a portion equal to at least $10,000,000 in the aggregate for such Existing Lender’s rights and obligations, hereunder to one or more Eligible
Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible
Transferee),
each of which assignees or transferees shall become a party to this Agreement as a Lender by execution of
(I) an Assignment Agreement (in the case of assignments) and (II) a Transfer Certificate (in the case of transfers under Section 13.06);
provided
that (x) at such time, Schedule 1.01(a) shall be deemed modified to reflect the
Commitments and/or outstanding Loans, as the case may be, of such New Lender and of the Existing Lenders, (y) the consent of the Facility Agent shall be required in connection with any assignment or transfer pursuant to the preceding clause
(ii) (which consent, in each case, shall not be unreasonably withheld or delayed) and (z) the consent of the CIRR Agent shall be required in connection with any assignment or transfer pursuant to preceding clause (i) or (ii) if
the New Lender elects to become a Refinanced Bank; and
provided
,
further
, that at no time shall a Lender assign or transfer its rights or obligations under this Agreement to a hedge fund, private equity fund, insurance company or other
similar or related financing institution that is not in the primary business of accepting cash deposits from, and making loans to, the public.
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(b) If (x) a Lender assigns or transfers any of its rights or obligations under the
Credit Documents or changes its Facility Office and (y) as a result of circumstances existing at the date the assignment, transfer or change occurs, a Credit Party would be obliged to make a payment to the New Lender or Lender acting through
its new Facility Office under Sections 2.08, 2.09 or 4.04, then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under that section to the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment, transfer or change had not occurred. This Section 13.01(b) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the
Credit Agreement.
(c) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for
the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on
which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
13.02
Assignment or Transfer Fee
. Unless the Facility Agent otherwise agrees and excluding an assignment or transfer (i) to
an Affiliate of a Lender, (ii) made in connection with primary syndication of this Agreement or (iii) as set forth in Section 13.03, each New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the
Facility Agent (for its own account) a fee of $3,500.
13.03
Assignments and Transfers to Hermes or KfW
. Nothing in
this Agreement shall prevent or prohibit any Lender from assigning its rights or transferring its rights and obligations hereunder to (x) Hermes and (y) KfW in support of borrowings made by such Lender from KfW pursuant to the KfW
Refinancing, in each case without the consent of the Borrower and without being required to pay the non-refundable assignment fee of $3,500 referred to in Section 13.02 above.
13.04
Limitation of Responsibility to Existing Lenders
. (a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity,
effectiveness, adequacy or enforceability of the Credit Documents, the Security Documents or any other documents;
(ii) the financial condition of any Credit Party;
(iii) the
performance and observance by any Credit Party of its obligations under the Credit Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection with any Credit Document or any other document,
and any representations or warranties implied by law are excluded.
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(b) Each New Lender confirms to the Existing Lender, the other Lender Creditors and the
Secured Creditors that it (1) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Credit Party and its related entities in connection with its participation in
this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Lender Creditor in connection with any Credit Document or any Lien (or any other security interest) created pursuant to the Security
Documents and (2) will continue to make its own independent appraisal of the creditworthiness of each Credit Party and its related entities whilst any amount is or may be outstanding under the Credit Documents or any Commitment is in force.
(c) Nothing in any Credit Document obliges an Existing Lender to:
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred
under this Section 13; or
(ii) support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Credit Party of its obligations under the Credit Documents or otherwise.
13.05
[Intentionally Omitted]
.
13.06
Procedure and Conditions for Transfer
. (a) Subject to Section 13.01, a
transfer is effected in accordance with Section 13.06(c) when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
Section 13.06(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
(c) On the date of the transfer:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Credit Documents and in respect of the Security Documents each of
the Credit Parties and the Existing Lender shall be released from further obligations towards one another under the Credit Documents and in respect of the Security Documents and their respective rights against one another under the Credit Documents
and in respect of the Security Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
(ii) each of the Credit Parties and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only
insofar as that Credit Party or other member of the NCLC Group and the New Lender have assumed and/or acquired the same in place of that Credit Party and the Existing Lender;
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(iii) the Facility Agent, the Collateral Agent, the Hermes Agent, the New
Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Security Documents as they would have acquired and assumed had the New Lender been an original Lender with the
rights, and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Collateral Agent, the Hermes Agent and the Existing Lender shall each be released from further obligations to each other
under the Credit Documents, it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iv) the New Lender shall become a party to this Agreement as a “Lender”; and
(v) the New Lender shall enter into the documentation required for it to accede as a party to the Intercreditor Agreement.
13.07
Procedure and Conditions for Assignment
. (a) Subject to Section 13.01, an assignment may be effected
in accordance with Section 13.07(c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to Section 13.07(b)
below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that
Assignment Agreement.
(b) The Facility Agent shall only be obliged to execute an Assignment Agreement
delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the assignment to such New
Lender.
(c) On the date of the assignment:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Credit Documents and in respect of
any Lien (or any other security interest) created pursuant to the Security Documents expressed to be the subject of the assignment in the Assignment Agreement;
(ii) the Existing Lender will be released from the obligations (the “
Relevant Obligations
”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding
obligations by which it is bound in respect of any Lien (or any other security interest) created pursuant to the Security Documents), it being understood that the indemnification provisions under this Agreement (including, without limitation,
Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iii) the New Lender
shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations; and
(iv) the New Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement.
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13.08
Copy of Transfer Certificate or Assignment Agreement to Parent
. The Facility
Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Parent a copy of that Transfer Certificate or Assignment Agreement.
13.09
Security over Lenders’ Rights
. In addition to the other rights provided to Lenders under this Section 13, each
Lender may without consulting with or obtaining consent from any Credit Party, at any time charge, assign or otherwise create a Lien (or any other security interest) or declare a trust in or over (whether by way of collateral or otherwise) all or
any of its rights under any Credit Document to secure obligations of that Lender including, without limitation:
(i) any charge, assignment or other Lien (or any other security interest) or trust to secure obligations to a federal
reserve or central bank or KfW as CIRR mandatary; and
(ii) in the case of any Lender which is a fund, any
charge, assignment or other Lien (or any other security interest) granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Lien (or any other security interest) or trust shall:
(i) release a Lender from any of its obligations under the Credit Documents or substitute the beneficiary of the relevant
charge, assignment or other Lien (or any other security interest) or trust for the Lender as a party to any of the Credit Documents; or
(ii) require any payments to be made by a Credit Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Credit Documents.
13.10
Assignment by a Credit Party
. No Credit Party may assign any of its rights or transfer by novation any of its
rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Hermes Agent, KfW, as CIRR mandatary, and the Lenders.
13.11
Lender Participations
. (a) Although any Lender may grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not
transfer by novation its rights and obligations or assign its rights under all or any portion of its Commitments hereunder except as provided in Sections 2.11 and 13.01) and the participant shall not constitute a “Lender” hereunder; and
(b) no Lender shall grant any participation under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan in which such participant is participating, or reduce the rate or extend the time of
payment of interest or Commitment Commission thereon (except (m) in connection with a
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waiver of applicability of any post-default increase in interest rates and (n) that any amendment or modification to the financial definitions in this Agreement shall not constitute a
reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of
any Default or Event of Default or of a mandatory reduction in the Total Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (y) consent to the assignment by the Borrower of any of its rights, or transfer by the Borrower of any of its rights and obligations, under this
Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case
of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
13.12
Increased Costs
. To the extent that a transfer of all or any portion of a Lender’s Commitments and related outstanding
Credit Document Obligations pursuant to Section 2.11 or Section 13.01 would, at the time of such assignment, result in increased costs under Section 2.08, 2.09 or 4.04 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective
assignment).
SECTION 14.
Miscellaneous
.
14.01
Payment of Expenses, etc.
The Borrower agrees that it shall: whether or not the transactions herein contemplated are consummated, (i) pay all reasonable documented out-of-pocket
costs and expenses of each of the Agents (including, without limitation, the reasonable documented fees and disbursements of White & Case LLP, Bahamian counsel, Bermudian counsel, other counsel to the Facility Agent and the Joint Lead
Arrangers and local counsel) in connection with the preparation, execution and delivery of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, and in connection with their respective syndication efforts with respect to this Agreement; (ii) pay all documented out-of-pocket costs and expenses of each of the Agents and each of the Lenders in connection with the
enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein (including, without limitation, the fees and disbursements of counsel (excluding in-house counsel) for each of the Agents
and for each of the Lenders); (iii) pay and hold the Facility Agent and each of the Lenders harmless from and against any and all present and future stamp, documentary, transfer, sales and use, value added, excise and other similar taxes with
respect to the foregoing matters, the performance of any obligation under this Agreement or any Credit Document or any payment thereunder, and save the Facility Agent and save each of the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay or omission (other than to the extent attributable to
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the Facility Agent or such Lender) to pay such taxes; and (iv) other than in respect of a wrongful failure by any Lender to fund its Commitments as required by this Agreement, indemnify the
Agents and each Lender, and each of their respective officers, directors, trustees, employees, representatives and agents from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result
of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding (whether or not any of the Agents or any Lender is a party thereto) related to the entering into and/or performance of this
Agreement or any other Credit Document or the proceeds of any Loans hereunder or the consummation of any transactions contemplated herein, or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the
other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials on the Vessel or in the air, surface water or groundwater or on the surface or subsurface of any property at any time owned or operated by the Borrower, the
generation, storage, transportation, handling, disposal or Environmental Release of Hazardous Materials at any location, whether or not owned or operated by the Borrower, the non-compliance of the Vessel or property with foreign, federal, state and
local laws, regulations, and ordinances (including applicable permits thereunder) applicable to the Vessel or property, or any Environmental Claim asserted against the Borrower or the Vessel or property at any time owned or operated by the Borrower,
including, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages,
penalties, actions, judgments, suits, costs, disbursements or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified or by reason of a failure by the Person to be indemnified to fund
its Commitments as required by this Agreement). To the extent that the undertaking to indemnify, pay or hold harmless each of the Agents or any Lender set forth in the preceding sentence may be unenforceable because it violates any law or public
policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
14.02
Right of Set-off
. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to the Parent or any Subsidiary of the Parent or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by such Lender (including, without limitation, by branches and agencies of
such Lender wherever located) to or for the credit or the account of the Parent or any Subsidiary of the Parent but in any event excluding assets held in trust for any such Person against and on account of the Credit Document Obligations and
liabilities of the Parent or such Subsidiary of the Parent, as applicable, to such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Credit Document Obligations purchased by such
Lender pursuant to Section 14.05(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not such Lender
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shall have made any demand hereunder and although said Credit Document Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. Each Lender upon the exercise of its
rights to set-off pursuant to this Section 14.02 shall give notice thereof to the Facility Agent.
14.03
Notices
.
Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and
mailed, telexed, telecopied, delivered or electronic mailed: if to any Credit Party, at the address specified on Schedule 14.03A; if to any Lender, at its address specified opposite its name on Schedule 14.03B; and if to the Facility Agent or the
Hermes Agent, at its Notice Office; or, as to any other Credit Party, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by
such Lender in a written notice to the Parent, the Borrower and the Facility Agent;
provided
that, with respect to all notices and other communication made by electronic mail or other electronic means, the Facility Agent, the Hermes Agent,
the Lenders, the Parent, the Borrower and the Pledgor agree that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that
means and (y) shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the
mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day,
(iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Facility Agent or the Hermes Agent shall not be effective until received by the Facility Agent or the Hermes
Agent (as the case may be), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by a Lender, the Parent, the Borrower or the Pledgor to the Facility
Agent or the Hermes Agent, only if it is addressed in such a manner as the Facility Agent shall specify for this purpose. A copy of any notice to the Facility Agent shall be delivered to the Hermes Agent at its Notice Office. If an Agent is an
Impaired Agent the parties to this Agreement may, instead of communicating with each other through such Agent, communicate with each other directly and (while such Agent is an Impaired Agent) all the provisions of the Credit Documents which
require communications to be made or notices to be given to or by such Agent shall be varied so that communications may be made and notices given to or by the relevant parties to this Agreement directly. This provision shall not operate after a
replacement Agent has been appointed.
14.04
No Waiver; Remedies Cumulative
. No failure or delay on the part of an
Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and an Agent or any Lender shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which an Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in
any
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case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of an Agent or any Lender to any other or
further action in any circumstances without notice or demand.
14.05
Payments Pro Rata
. (a) Except as otherwise
provided in this Agreement, the Facility Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Credit Document Obligations hereunder, it shall distribute such payment to the Lenders (other
than any Lender that has consented in writing to waive its
pro
rata
share of any such payment)
pro
rata
based upon their respective shares, if any, of the Credit Document Obligations with respect to which such payment was
received.
(b) Other than in connection with assignments and participations (which are governed by Section 13), each of
the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any
right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Commitment Commission, of a sum which with respect to the related sum or sums received by other Lenders is in a
greater proportion than the total of such Credit Document Obligation then owed and due to such Lender bears to the total of such Credit Document Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Credit Document Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount;
provided
that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the provisions of the
preceding Sections 14.05(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
14.06
Calculations; Computations
. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by the Parent to the
Lenders). In addition, all computations determining compliance with the financial covenants set forth in Sections 10.06 through 10.09, inclusive, shall utilize accounting principles and policies in conformity with those used to prepare the
historical financial statements delivered to the Lenders for the fiscal year of the Parent ended December 31, 2009 (with the foregoing generally accepted accounting principles, subject to the preceding proviso, herein called
“
GAAP
”). Unless otherwise noted, all references in this Agreement to “generally accepted accounting principles” shall mean generally accepted accounting principles as in effect in the United States.
(b) All computations of interest and Commitment Commission hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in the period for which such interest or Commitment Commission are payable.
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14.07
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF
PROCESS
. (a) THIS AGREEMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY ENGLISH LAW.
(b) THE COURTS OF ENGLAND HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING A DISPUTE RELATING TO THE EXISTENCE, VALIDITY OR TERMINATION
OF THIS AGREEMENT OR ANY NON-CONTRACTUAL OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) (A “
DISPUTE
”)
.
THE PARTIES HERETO AGREE THAT THE COURTS OF ENGLAND ARE THE MOST APPROPRIATE AND CONVENIENT COURTS TO
SETTLE DISPUTES AND ACCORDINGLY NO PARTY HERETO WILL ARGUE TO THE CONTRARY. THIS SECTION 14.07 IS FOR THE BENEFIT OF THE LENDERS, AGENTS AND SECURED CREDITORS. AS A RESULT, NO SUCH PARTY SHALL BE PREVENTED FROM TAKING PROCEEDINGS RELATING TO A
DISPUTE IN ANY OTHER COURTS WITH JURISDICTION. TO THE EXTENT ALLOWED BY LAW, THE LENDERS, AGENTS AND SECURED CREDITORS MAY TAKE CONCURRENT PROCEEDINGS IN ANY NUMBER OF JURISDICTIONS.
(c) WITHOUT PREJUDICE TO ANY OTHER MODE OF SERVICE ALLOWED UNDER ANY RELEVANT LAW, EACH CREDIT PARTY (OTHER THAN A CREDIT PARTY
INCORPORATED IN ENGLAND AND WALES): (I)IRREVOCABLY APPOINTS EC3 SERVICES LIMITED, HAVING ITS REGISTERED OFFICE AT 51 EASTCHEAP, LONDON, EC3M 1JP, AS ITS AGENT FOR SERVICE OF PROCESS IN RELATION TO ANY PROCEEDINGS BEFORE THE ENGLISH COURTS IN
CONNECTION WITH ANY CREDIT DOCUMENT AND (II) AGREES THAT FAILURE BY AN AGENT FOR SERVICE OF PROCESS TO NOTIFY THE RELEVANT CREDIT PARTY OF THE PROCESS WILL NOT INVALIDATE THE PROCEEDINGS CONCERNED. 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 PARENT (ON BEHALF OF ALL THE CREDIT PARTIES) MUST IMMEDIATELY (AND IN ANY EVENT WITHIN FIVE DAYS OF SUCH EVENT TAKING PLACE) APPOINT ANOTHER AGENT ON TERMS
ACCEPTABLE TO THE FACILITY AGENT. FAILING THIS, THE FACILITY AGENT MAY APPOINT ANOTHER AGENT FOR THIS PURPOSE.
EACH
PARTY TO THIS AGREEMENT EXPRESSLY AGREES AND CONSENTS TO THE PROVISIONS OF THIS SECTION 14.07.
14.08
Counterparts
.
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Facility Agent.
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14.09
Effectiveness
. This Agreement shall take effect as a deed on the date (the
“
Effective Date
”) on which (i) the Borrower, the Guarantor, the Agents and each of the Lenders who are initially parties hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Facility Agent or, in the case of the Lenders and the other Agents, shall have given to the Facility Agent written or facsimile notice (actually received) at such office that the same has been signed and mailed to it,
(ii) the Borrower shall have paid to the Facility Agent for its own account and/or the account of Lenders and/or Agents, as the case may be, the fees required to be paid pursuant to that certain commitment letter, dated October 11, 2010,
among the Parent, the Hermes Agent, Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA (the “
Commitment Letter
”) and (iii) the Credit Parties shall have
provided (x) the “Know Your Customer” information required pursuant to the USA PATRIOT Act (Title III of Pub.: 107-56 (signed into law October 26, 2001)) (the “
PATRIOT ACT
”) and (y) such other documentation
and evidence necessary in order to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the
Hermes Agent or any Lender in connection with each of the Facility Agent’s, the Hermes Agent’s, Hermes’ and each Lender’s internal compliance regulations. The Facility Agent will give the Parent, the Borrower and each Lender
prompt written notice of the occurrence of the Effective Date.
14.10
Headings Descriptive
. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
14.11
Amendment or Waiver; etc.
(a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Credit Parties party thereto, the Hermes Agent and the Required Lenders,
provided
that no such change, waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender), (i) extend the final scheduled maturity of any Loan, extend the timing for or reduce the principal amount of any Scheduled Repayment, increase or extend any Commitment (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Commitments shall not constitute an increase of the Commitment of any Lender), or reduce the rate (including, without limitation, the
Applicable Margin) or extend the time of payment of interest on any Loan or Commitment Commission or fees (except (x) in connection with the waiver of applicability of any post-default increase in interest rates and (y) any amendment or
modification to the definitions used in the financial covenants set forth in Sections 10.06 through 10.09, inclusive, in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i)), or reduce the
principal amount thereof (except to the extent repaid in cash), (ii) release any of the Collateral (except as expressly provided in the Credit Documents) under any of the Security Documents, (iii) amend, modify or waive any provision of
Section 13 or this Section 14.11, (iv) change the definition of Required Lenders (it being understood that, with the consent
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of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the extensions
of Loans and Commitments are included on the Effective Date) or a provision which expressly requires the consent of all the Lenders, (v) consent to the assignment and/or transfer by the Parent and/or Borrower of any of its rights and
obligations under this Agreement, or (vi) replace the Parent Guaranty or release the Parent Guaranty from the relevant guarantee to which such Guarantor is a party (other than as provided in such guarantee);
provided
,
further
,
that no such change, waiver, discharge or termination shall (u) without the consent of Hermes, amend, modify or waive any provision that relates to the rights or obligations of Hermes and (v) without the consent of each Agent, KfW, as CIRR
mandatary and/or each Joint Lead Arranger, as applicable, amend, modify or waive any provision relating to the rights or obligations of such Agent, KfW, as CIRR mandatary and/or such Joint Lead Arranger, as applicable.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 14.11(a), the consent of the Required Lenders is obtained but the consent of each Lender (other than any Defaulting Lender) is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders with one or more Replacement Lenders
pursuant to Section 2.11 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Commitment (if such
Lender’s consent is required as a result of its Commitment), and/or repay outstanding Loans and terminate any outstanding Commitments of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with
Section 4.01(d),
provided
that, unless the Commitments are terminated, and Loans repaid, pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed
action) and the Hermes Agent shall specifically consent thereto,
provided
,
further
, that in any event the Borrower shall not have the right to replace a Lender, terminate its Commitment or repay its Loans solely as a result of the
exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 14.11(a).
14.12
Survival
. All indemnities set forth herein including, without limitation, in Sections 2.08, 2.09, 2.10, 4.04, 14.01 and 14.05 shall, subject to Section 14.13 (to the extent applicable),
survive the execution, delivery and termination of this Agreement and the making and repayment of the Loans.
14.13
Domicile of Loans
. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans
pursuant to this Section 14.13 would, at the time of such transfer, result in increased costs under Section 2.08, 2.09, or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).
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14.14
Confidentiality
. Each Lender agrees that it will use its best efforts not to
disclose without the prior consent of the Parent or the Borrower (other than to their respective Affiliates or their respective Affiliates’ employees, auditors, advisors or counsel or to another Lender if the Lender or such Lender’s
holding or parent company, Affiliates or board of trustees in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section 14.14 to the same
extent as such Lender) any information with respect to the Parent or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document,
provided
that the Hermes Agent and the CIRR Agent
may disclose any information to Hermes or KfW, as CIRR mandatary,
provided
,
further
, that any Lender may disclose any such information (a) as has become generally available to the public other than by virtue of a breach of this
Section 14.14 by the respective Lender, (b) as may be required in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or similar
organizations (whether in the United States, the United Kingdom or elsewhere) or their successors, (c) as may be required in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (e) to an Agent, (f) to any prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Commitments or any interest
therein by such Lender,
provided
that such prospective transferee expressly agrees to be bound by the confidentiality provisions contained in this Section 14.14 and (g) to Hermes and/or the Federal Republic of Germany and/or the
European Union and/or any agency thereof or any person acting or purporting to act on any of their behalves. In the case of Section 14.14(g), each of the Parent and the Borrower acknowledges and agrees that any such information may be used by
Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or any person acting or purporting to act on any of their behalves for statistical purposes and/or for reports of a general nature.
14.15
Register
. The Facility Agent shall maintain a register (the “
Register
”) on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment and prepayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the assignment or transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such assignment or transfer is recorded on the Register maintained by the Facility Agent with respect to ownership of such Commitments and Loans. Prior to such recordation all amounts owing
to the transferor with respect to such Commitments and Loans shall remain owing to the transferor. The registration of an assignment or transfer of all or part of any Commitments and Loans (as the case may be) shall be recorded by the Facility Agent
on the Register only upon the acceptance by the Facility Agent of a properly executed and delivered Transfer Certificate or Assignment Agreement pursuant to Section 13.06(a) or 13.07(a), respectively.
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14.16
Third Party Rights
. Other than the Other Creditors with respect to
Section 4.05, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement unless expressly provided to the contrary in a Credit
Document. Notwithstanding any term of any Credit Document, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.
14.17
Judgment Currency
. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Facility Agent could purchase the specified currency with such other currency at the Facility Agent’s Frankfurt office on the Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or an Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or an Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or an Agent (as the case may be) may in accordance with normal banking procedures purchase the
specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to such Lender or an Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or an Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds the
sum originally due to any Lender or an Agent, as the case may be, in the specified currency, such Lender or an Agent, as the case may be, agrees to remit such excess to the Borrower.
14.18
Language
. All correspondence, including, without limitation, all notices, reports and/or certificates, delivered by any
Credit Party to an Agent or any Lender shall, unless otherwise agreed by the respective recipients thereof, be submitted in the English language or, to the extent the original of such document is not in the English language, such document shall be
delivered with a certified English translation thereof. In the event of any conflict between the English translation and the original text of any document, the English translation shall prevail unless the original text is a statutory instrument,
legal process or any other document of a similar type or a notice, demand or other communication from Hermes or in relation to the Hermes Cover.
14.19
Waiver of Immunity
. The Borrower, in respect of itself, each other Credit Party, its and their process agents, and its and their properties and revenues, hereby irrevocably agrees that, to
the extent that the Borrower, any other Credit Party or any of its or their properties has or may hereafter acquire any right of immunity from any legal proceedings, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany or
elsewhere, to enforce or collect upon the Credit Document Obligations of the Borrower or any other Credit Party related to or arising from the transactions contemplated by any of the Credit Documents, including, without limitation, immunity from
service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from
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attachment in aid of execution upon a judgment, the Borrower, for itself and on behalf of the other Credit Parties, hereby expressly waives, to the fullest extent permissible under applicable
law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany or elsewhere.
14.20
“Know Your Customer” Notice
. Each Lender hereby notifies each Credit Party that pursuant to the requirements of
the PATRIOT Act and/or other applicable laws and regulations, it is required to obtain, verify, and record information that identifies each Credit Party, which information includes the name of each Credit Party and other information that will allow
such Lender to identify each Credit Party in accordance with the PATRIOT Act and/or such other applicable laws and regulations, and each Credit Party agrees to provide such information from time to time to any Lender.
14.21
Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
. (a) In the event that any Person conveys, sells,
leases, assigns, transfers or otherwise disposes of all or any portion of the Collateral to a Person that is not (and is not required to become) a Credit Party in a transaction permitted by this Agreement or the Credit Documents (including pursuant
to a valid waiver or consent), each Lender hereby consents to the release and hereby directs the Collateral Agent to release any Liens created by any Credit Document in respect of such Collateral, and, in the case of a disposition of all of the
Equity Interests of any Credit Party (other than the Borrower) in a transaction permitted by this Agreement and as a result of which such Credit Party would not be required to guaranty the Credit Document Obligations pursuant to Sections 9.10(c) and
15, each Lender hereby consents to the release of such Credit Party’s obligations under the relevant guarantee to which it is a party. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees, upon receipt of reasonable
advance notice from the Borrower, to execute and deliver or, at the Borrower’s expense, file such documents and perform other actions reasonably necessary to release the relevant guarantee, as applicable, and the Liens when and as directed
pursuant to this Section 14.21. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Borrower and at the Borrower’s expense to terminate the Liens and security interests created by the Credit
Documents when all the Credit Document Obligations (other than contingent indemnification Credit Document Obligations and expense reimbursement claims to the extent no claim therefore has been made) are paid in full and Commitments are terminated.
Any representation, warranty or covenant contained in any Credit Document relating to any such Equity Interests or asset of the Borrower shall no longer be deemed to be made once such Equity Interests or asset is so conveyed, sold, leased, assigned,
transferred or disposed of.
(b) In the event that the Borrower desires to implement a Flag Jurisdiction Transfer with respect
to the Vessel, upon receipt of reasonable advance notice thereof from the Borrower, the Collateral Agent shall use commercially reasonably efforts to provide, or (as necessary) procure the provision of, all such reasonable assistance as any Credit
Party may request from time to time in relation to (i) the Flag Jurisdiction Transfer, (ii) the related deregistration of the Vessel from its previous flag jurisdiction, and (iii) the release and discharge of the related Security
Documents provided that the relevant Credit Party shall pay all documented out of pocket costs and expenses reasonably incurred by the Collateral Agent or a Secured Creditor in connection with provision of such assistance. Each Lender hereby
consents,
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in connection with any Flag Jurisdiction Transfer and subject to the satisfaction of the requirements thereof to be satisfied by the relevant Credit Party, to (i) deregister the
Vessel from its previous flag jurisdiction and (ii) release and hereby direct the Collateral Agent to release the Vessel Mortgage. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees to execute and deliver or, at
the Borrower’s expense, file such documents and perform other actions reasonably necessary to release the Vessel Mortgage when and as directed pursuant to this Section 14.21(b).
14.22
Partial Invalidity
. If, at any time, any provision of the Credit Documents is or becomes illegal, invalid or unenforceable
in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be
affected or impaired. Any such illegal, invalid or unenforceable provision shall to the extent possible be substituted by a legal, valid and enforceable provision which reflects the intention of the parties to this Agreement.
SECTION 15.
Parent Guaranty
.
15.01
Guaranty and Indemnity
. The Parent irrevocably and unconditionally:
(i) guarantees to each Lender Creditor punctual performance by each other Credit Party of all that Credit Party’s Credit Document Obligations under the Credit Documents; or
(ii) undertakes with each Lender Creditor that whenever another Credit Party does not pay any amount when due under or in
connection with any Credit Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(iii) agrees with each Lender Creditor that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Lender
Creditor immediately on demand against any cost, loss or liability it incurs as a result of a Credit Party not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Credit Document
on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Section 15 if the amount claimed had been recoverable on the basis of a guarantee.
15.02
Continuing Guaranty
. This guarantee is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Credit Party under the Credit Documents, regardless of any intermediate payment or discharge in whole or in part.
15.03
Reinstatement
. If any discharge, release or arrangement (whether in respect of the obligations of any Credit Party or any security for those obligations or otherwise) is made by a Lender
Creditor in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or
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otherwise, without limitation, then the liability of the Guarantor under this Section 15 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
15.04
Waiver of Defenses
. The obligations of the Guarantor under this Section 15 will not be affected by an act,
omission, matter or thing which, but for this Section 15, would reduce, release or prejudice any of its obligations under this Section 15 (without limitation and whether or not known to it or any Lender Creditor) including:
(i) any time, waiver or consent granted to, or composition with, any Credit Party or other person;
(ii) the release of any other Credit Party or any other person under the terms of any composition or arrangement with any
creditor of any member of the NCLC Group;
(iii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Credit Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realize the full value of any security;
(iv) any incapacity or lack of power,
authority or legal personality of or dissolution or change in the members or status of a Credit Party or any other person;
(v) any amendment, novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Credit Document or any other document or security including,
without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Credit Document or other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Credit Document or any other
document or security; or
(vii) any insolvency or similar proceedings.
15.05
Guarantor Intent
. Without prejudice to the generality of Section 15.04, the Guarantor expressly confirms that it
intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Credit Documents and/or any facility or amount made available under any of the Credit Documents
for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing
any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated
with any of the foregoing.
15.06
Immediate Recourse
. The Guarantor waives any right it may have of first requiring any
Credit Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Section 15. This waiver applies irrespective of any
law or any provision of a Credit Document to the contrary.
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15.07
Appropriations
. Until all amounts which may be or become payable by the Credit
Parties under or in connection with the Credit Documents have been irrevocably paid in full, each Lender Creditor (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Lender Creditor (or any trustee or agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
(ii) hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the
Guarantor’s liability under this Section 15.
15.08
Deferral of Guarantor’s Rights
. Until all amounts
which may be or become payable by the Credit Parties under or in connection with the Credit Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, the Guarantor will not exercise any rights which it may have by
reason of performance by it of its obligations under the Credit Documents or by reason of any amount being payable, or liability arising, under this Section 15:
(i) to be indemnified by a Credit Party;
(ii) to claim any contribution from any other guarantor of any Credit Party’s obligations under the Credit Documents;
(iii) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Lender Creditors under the Credit Documents or of any other guarantee or security taken pursuant to, or in connection with, the Credit Documents by any Lender Creditor;
(iv) to bring legal or other proceedings for an order requiring any Credit Party to make any payment, or perform any
obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Section 15.01;
(v) to exercise any right of set-off against any Credit Party; and/or
(vi) to claim or prove as a creditor of any Credit Party in competition with any Lender Creditor.
If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or
become payable to the Lender Creditors by the Credit Parties under or in connection with the Credit Documents to be repaid in full on trust for the Lender Creditors and shall promptly pay or transfer the same to the Facility Agent or as the Facility
Agent may direct for application in accordance with Section 4.
-98-
15.09
Additional Security
. This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by any Credit Party.
* * *
-99-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as a deed on the date first above written.
Signed as a deed for and on behalf of NCL CORPORATION LTD., a Bermuda
company, as Parent and Guarantor, by [full name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
Signed as a deed and delivered on behalf of BREAKAWAY ONE, LTD., a Bermuda company, as Borrower, by [full
name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
Signed as a deed and delivered on behalf of KFW IPEX-BANK GMBH, a bank organized under the laws of Germany,
Individually and as Facility Agent, Collateral Agent, a Joint Lead Arranger and CIRR Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of NORDEA BANK NORGE ASA, a bank organized under the laws of
Norway, Individually and as Documentation Agent and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of DnB NOR BANK ASA, a bank organized under the laws of Norway,
Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, a bank organized under
the laws of Germany, Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of HSBC BANK PLC, a bank organized under the laws of England,
Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of COMMERZBANK AKTIENGESELLSCHAFT, a bank organized under the laws
of Germany, as Hermes Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of KFW, a public credit institution established under the laws of
Germany, Individually and as CIRR Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the public credit institution
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
SCHEDULE 1.01(a)
COMMITMENTS
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Lender
|
|
Commitments
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Deutsche Schiffsbank Aktiengesellschaft
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[*]
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DnB NOR Bank ASA
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[*]
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HSBC Bank plc
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[*]
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KfW IPEX-Bank GmbH
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[*]
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Nordea Bank Norge ASA
|
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[*]
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Total
|
|
€
|
529,846,154
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SCHEDULE 1.01(b)
MANDATORY COSTS
|
1.
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
|
2.
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On the first day of each Interest Period (or as soon as possible thereafter) the Facility Agent shall calculate, as a percentage rate, a rate (the “
Additional
Cost Rate
”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Facility Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
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3.
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Facility
Agent. This percentage will be certified by that Lender in its notice to the Facility Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender’s participation in all Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
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4.
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows:
|
in relation to a sterling Loan:
[*] per cent. per annum
in relation to a Loan in any currency other than sterling:
[*] per cent. per annum.
Where:
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A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
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|
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B
|
is the percentage rate of interest (excluding the Applicable Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified
in paragraph (b) of Section 2.06 payable for the relevant Interest Period on the Loan.
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|
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C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of
England.
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D
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is the percentage rate per annum payable by the Bank of England to the Facility Agent on interest bearing Special Deposits.
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|
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E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Facility Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
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SCHEDULE 1.01(b)
|
5.
|
For the purposes of this Schedule:
|
“
Eligible Liabilities
” and “
Special Deposits
” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
“
Fees Rules
” means the rules on periodic fees contained in the
Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
“
Fee Tariffs
” means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to
the Fees Rules but taking into account any applicable discount rate);
“
Participating Member State
”
means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“
Tariff Base
” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules; and
“
Unpaid Sum
” means any sum due and payable but unpaid by any Credit Party under the Credit Documents.
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6.
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not
as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
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7.
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Facility
Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
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8.
|
Each Lender shall supply any information required by the Facility Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
|
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a)
|
the jurisdiction of its Facility Office; and
|
SCHEDULE 1.01(b)
|
|
b)
|
any other information that the Facility Agent may reasonably require for such purpose.
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Each Lender shall promptly notify the Facility Agent of any change to the information provided by it pursuant to this paragraph.
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9.
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the
Facility Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
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10.
|
The Facility Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall
be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
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11.
|
The Facility Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
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12.
|
Any determination by the Facility Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
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13.
|
The Facility Agent may from time to time, after consultation with the Parent and the Lenders, determine and notify to all parties to the Credit Agreement any amendments
which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
|
SCHEDULE 5.07
NOTICES, ACKNOWLEDGMENTS AND CONSENTS
Notices
1. Notice of Assignment of the Construction Contract for Breakaway One, Ltd. in the form of Part 1 of Schedule 1 to the Assignment of Contracts shall be
delivered to the Yard.
2. Notice of Assignment of Refund Guarantees for Breakaway One, Ltd. in the form of either (x) Part 2 of Schedule
1 to the Assignment of Contracts or (y) Schedule 1 to the Assignment of KfW Refund Guarantees, as applicable, shall be delivered to the applicable issuer of Refund Guarantees in respect of the Refund Guarantee(s) issued on or prior to the
Initial Borrowing Date.
Financing Statements
1. UCC-1 shall be filed with the Florida Secured Transaction Registry naming Breakaway One, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
SCHEDULE 5.10
INITIAL BORROWING DATE OPINIONS
|
1.
|
Pursuant to Section 5.10(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
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|
|
(a)
|
The Transaction Documents provide that they are to be governed by English law. To the extent that the Transaction Documents are governed by English law or the law
of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to the Transaction Documents. However, we
are of the opinion that if the Transaction Documents were governed by the laws of the state of New York (without reference to New York choice of law principles that would result in the application of the laws of another jurisdiction), the execution
and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document to which it is a party will not, violate, breach, or constitute
a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the assets of such Credit Party or give any other party thereto the
right to accelerate under, any existing obligation or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to the Officer’s Certificate. If any Other Agreement is
governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical terms would mean what lawyers generally understand them to
mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination.
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2.
|
Pursuant to Section 5.10(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bermudan Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Each of the Companies is duly incorporated with limited liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make
any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
|
|
|
(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
|
|
|
(i)
|
are within its corporate powers and have been duly authorised; and
|
SCHEDULE 5.10
|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
|
|
|
(c)
|
Each of the English Law Documents has been duly executed by the Companies party thereto and constitutes legal, valid and binding obligations of such Companies,
enforceable in Bermuda in accordance with its terms.
|
|
|
(d)
|
The Bermuda Law Document has been duly executed by NCLI, constitutes legal, valid and binding obligations of NCLI and creates a valid security interest, enforceable in
Bermuda in accordance with its terms.
|
|
|
(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
|
|
|
(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
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|
|
(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
|
|
|
(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
|
|
|
(i)
|
The choice of the English Laws as the governing law of the English Law Documents is a valid choice of law and the submission by the Companies to the exclusive
jurisdiction of the English Courts is valid and binding upon the Companies and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
SCHEDULE 5.10
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(j)
|
The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
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(k)
|
None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
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(l)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
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(m)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Companies by any party to the English Law Documents
based upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in
the Protection of Trading Interests Act 1981) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the merits of the case
provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
SCHEDULE 5.10
|
|
(n)
|
Under Section 3 of the 1958 Act, the registration of the judgment of the English Courts in the Supreme Court of Bermuda involves the conversion of the judgment
debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by the Supreme Court of Bermuda to
be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement.
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|
(o)
|
No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
|
|
|
(p)
|
It is not necessary under the laws of Bermuda:
|
|
|
(i)
|
in order to enable any party to enforce its rights under the Opinion Documents; or
|
|
|
(ii)
|
by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
|
that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
|
3.
|
Pursuant to Section 5.10(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, English Counsel to the Documentation Agent
for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion) :
|
|
|
(a)
|
the obligations expressed to be assumed by each of the Borrower and the Parent in the Credit Documents to which it is a party constitute its valid, legally binding and
enforceable obligations;
|
|
|
(b)
|
there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Credit Documents;
|
|
|
(c)
|
English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Credit Documents and will regard express submission by
the Borrower and the Parent to the jurisdiction contained in the Credit Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
|
|
|
(d)
|
no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Credit Documents;
|
SCHEDULE 5.10
|
|
(e)
|
neither the Construction Contract nor the Original Refund Guarantee contains any restrictions which prevent them from being assigned to, or charged in favour of, the
Collateral Agent; and
|
|
|
(f)
|
each Vessel 1 Assignment Agreement is effective to create valid security interests in favour of the Collateral Agent.
|
|
4.
|
Pursuant to Section 5.10(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, German Counsel to the Documentation Agent for
the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
The Declaration of Guarantee constitutes a valid and legally binding guarantee of the Federal Republic of Germany towards [
—
] subject to the specific
provisions set out in the Declaration of Guarantee and subject to the applicable General Terms and Conditions and Guidelines.
|
5.
|
Pursuant to Section 5.10(e) and subject to the assumptions, qualifications and definitions set forth in such opinion, Florida Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
To the extent that a security
interest in the Collateral can be perfected by filing a UCC-1 financing statement in the State of Florida, perfection would occur by filing such financing statement with the office described in Annex 2 to such opinion. Note that, if the debtor
purporting to grant such security interest changes the location of its chief executive office to another location, the effectiveness of the Financing Statements will cease on the expiration of four months after such change or, if earlier, when
perfection would have otherwise ceased, unless such security interest becomes perfected under the law of such other location prior to such expiration.
SCHEDULE 6.10
MATERIAL LITIGATION
None.
SCHEDULE 7.05
DELIVERY DATE OPINIONS
|
6.
|
Pursuant to Section 7.05(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, English Counsel to the Documentation Agent
for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
the obligations expressed to be assumed by each Borrower in the Opinion Documents constitute its valid, legally binding and enforceable obligations;
|
|
|
(b)
|
there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Opinion Documents;
|
|
|
(c)
|
English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Opinion Documents and will regard express submission by
the Borrower to the jurisdiction contained in the Opinion Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
|
|
|
(d)
|
no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Opinion Documents; and
|
|
|
(e)
|
each Assignment Agreement is effective to create valid security interests in favour of the Collateral Agent.
|
|
7.
|
Pursuant to Section 7.05(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms shall have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
The Transaction Documents provide that they are to be governed by English law. To the extent that the Transaction Documents are governed by
English law or the law of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to the Transaction
Documents. However, we are of the opinion that if the Transaction Documents were governed by the laws of the state of New York (without reference to New York choice of law principles that would result in the application of the laws of another
jurisdiction), the execution and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document to which it is a party will not,
violate, breach, or constitute a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the assets of such Credit Party or give
any other party thereto the right to accelerate under, any existing obligation
|
SCHEDULE 7.05
|
|
or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to the Officer’s Certificate. If any Other Agreement is
governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical terms would mean what lawyers generally understand them to
mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination.
|
|
8.
|
Pursuant to Section 7.05(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bahamian Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Under the laws of the Bahamas the Borrower is the registered owner of record of sixty-four sixty-fourth shares, being the whole thereof of the [
insert vessel
name
] and the Vessel Mortgage constitutes the valid and legally binding act of the Borrower and the Vessel Mortgage is enforceable in accordance with its terms, and further, the Vessel Mortgage creates in favour of the Mortgagee a valid and
effective first priority legal mortgage over the [
insert vessel name
] and there are no other charges, mortgages or encumbrances on record with respect thereto. It should be noted that maritime liens as set out in Section 281 of The
Merchant Shipping Act of The Bahamas have priority over mortgages even if such liens are incurred after a mortgage has been registered.
|
|
|
(b)
|
No further registration authorization, approval or consent or other official action in The Bahamas is necessary to render any of the Documents or the security
respectively created thereby valid, perfected and enforceable.
|
|
|
(c)
|
All filing, registration and recording fees required under the laws of The Bahamas in connection with the Vessel Mortgage and other fees necessary to ensure the
validity, effectiveness and priority of any liens, charges and encumbrances created under the Vessel Mortgage have been paid.
|
|
|
(d)
|
The courts of The Bahamas will recognize as a valid judgment and enforce any final, conclusive and enforceable judgment obtained against a mortgagor in a United Kingdom
court without re-examination of the merits of the case subject to registration of the judgment under the provisions of the Reciprocal Enforcements of Judgments Act of the Bahamas.
|
|
|
(e)
|
The Vessel Mortgage constitutes the legal, valid and binding obligations of the Borrower and is enforceable in accordance with its terms.
|
|
|
(f)
|
No consents, authorizations or other approvals are required from any governmental or other authority of The Bahamas for the execution, delivery or performance of any of
the Documents by any of the parties thereto or the consummation of the transactions contemplated therein.
|
SCHEDULE 7.05
|
|
(g)
|
Neither the execution nor delivery of the Documents by the Borrower, nor the performance of its obligations under the Documents, will contravene any existing applicable
law or regulation of The Bahamas.
|
|
|
(h)
|
The Borrower is not entitled or required under any existing applicable law or regulation of The Bahamas to make any withholding or deduction in respect of any tax or
otherwise from any payment which it is or may be required to make under the Documents (or any of them) and other than the fees paid in connection with the registration of the Vessel Mortgage no tax, impost, duty or registration fee is payable on any
of the Documents in The Bahamas save for registration fees on the Vessel Mortgage.
|
|
|
(i)
|
Other than the fees paid in connection with the registration of the Vessel Mortgage, no stamp or registration duty or similar taxes or charges are payable in The
Bahamas in respect of the Documents.
|
|
|
(j)
|
Under the laws of The Bahamas, the Mortgagee will not be deemed to be resident, domiciled or carrying on any commercial activity in The Bahamas or subject to any tax of
The Bahamas as a result of its entry into the Documents or the performance of any of the transactions contemplated thereby. It is not necessary for the Mortgagee to be authorized or qualified to carry on business in The Bahamas or establish a place
of business in The Bahamas for the entry into or performance of the Documents.
|
|
|
(k)
|
It is not necessary or advisable to take any further action in the future in order to preserve the security interests referred to above or the priority thereof in
connection with the Vessel Mortgage.
|
|
9.
|
Pursuant to Section 7.05(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bermudan Counsel to the Credit Parties opine
as follows (capitalized terms shall have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Each of the Companies is duly incorporated with limited liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make
any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
|
|
|
(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
|
|
|
(i)
|
are within its corporate powers and have been duly authorised; and
|
SCHEDULE 7.05
|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
|
|
|
(c)
|
The relevant Opinion Documents have been duly executed by each of the Companies and constitute legal, valid and binding obligations of each of the Companies,
enforceable in Bermuda in accordance with its terms.
|
|
|
(d)
|
Based solely on the Litigation Searches, there are no judgments against, nor legal or governmental actions or proceedings pending in Bermuda to which any of the
Companies is subject.
|
|
|
(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
|
|
|
(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
|
|
|
(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
|
|
|
(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
|
|
|
(i)
|
The choice of the English Laws as the governing law of the English Law Documents is a valid choice of law and the submission by each of the Companies to the exclusive
jurisdiction of the English Courts is valid and binding upon them and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
SCHEDULE 7.05
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(j)
|
The choice of the Bahamian Laws as the governing law of the Bahamian Law Document is a valid choice of law and the submission by the Borrower to the jurisdiction of the
Bahamian Courts is valid and binding upon the Borrower and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(k)
|
The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
|
|
|
(l)
|
None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
|
|
(m)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
|
|
|
(n)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Borrower by any party to the English Law Documents based
upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in the
Protection of Trading Interests Act 1981 (the “1981 Act”)) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the
merits of the case provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
SCHEDULE 7.05
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
|
|
(o)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Borrower by any party to the Bahamian Law Document based
upon such documents in the Bahamian Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in 1981
Act) and such a judgment will be enforced by the Supreme Court of Bermuda under the 1958 Act without re-examination of the merits of the case provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
|
|
(p)
|
Under Section 3 of the 1958 Act, the registration of the judgment of any of the courts referred to in paragraphs 14 to 15 in the Supreme Court of Bermuda involves
the conversion of the judgment debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by
the Supreme Court of Bermuda to be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for
enforcement.
|
|
|
(q)
|
No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
|
SCHEDULE 7.05
|
|
(r)
|
It is not necessary under the laws of Bermuda:
|
|
|
(i)
|
in order to enable any party to enforce its rights under the Opinion Documents; or
|
|
|
(ii)
|
by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
|
that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
SCHEDULE 8.03
EXISTING AGREEMENTS
None.
SCHEDULE 8.12
CAPITALIZATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Credit Party
|
|
Owner
|
|
Type of
Shares
|
|
|
Number of
Shares
Owned
|
|
|
Percent of
Outstanding
Shares
Owned
|
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
|
Common
|
|
|
|
997,218,181
|
|
|
|
100
|
%
|
SCHEDULE 8.13
SUBSIDIARIES
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
Jurisdiction of
Organization
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
100
|
|
Isle of Man
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Maritime Investment, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
NCL America Holdings, LLC
|
|
Arrasas Limited
|
|
100
|
|
Delaware
|
|
NCL America LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
NCL (Bahamas) Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
NCL Cruises Ltd.
|
|
NCL Holding ASA
|
|
100
|
|
Bermuda
|
|
NCL Holding ASA
1
|
|
Arrasas Limited
|
|
100
|
|
Norway
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
100
|
|
Bermuda
|
|
Norwegian Dawn Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Epic, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Gem, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Pearl, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Spirit, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Star Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Sun Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Polynesian Adventure Tours, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Hawaii
|
|
PAT Tours, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
Pride of America Ship Holding, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
1
|
This company is under voluntary liquidation.
|
SCHEDULE 8.13
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
Jurisdiction of
Organization
|
|
Pride of Hawaii, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
SCHEDULE 8.19
VESSEL
N/A
SCHEDULE 8.21
APPROVED CLASSIFICATION SOCIETIES
American Bureau of Shipping
Nippon Kaiji Kyokai
Germanischer Lloyd
Lloyd’s Register of Shipping
Bureau Veritas
Det Norske Veritas
SCHEDULE 9.03
REQUIRED INSURANCE
1. For the purpose of this Schedule 9.03, the following terms shall have the meanings ascribed to them as follows:
“
Compulsory Acquisition Compensation
” shall mean all moneys or other compensation whatsoever payable by reason of the
compulsory acquisition of the Vessel other than by requisition for hire;
“
Insurances
” shall mean all
policies and contracts of the insurance and entries of the Vessel in a protection and indemnity or war risks association which are effected in respect of the Vessel, its freight, disbursements, profits or otherwise and all benefits, including all
claims and returns of premiums thereunder and shall also include all Compulsory Acquisition Compensation;
“
Security
Period
” shall mean that period from the Delivery Date until the date on which all Loans shall have been fully paid, satisfied and extinguished.
“
Total Loss
” shall mean any actual or constructive or arranged or agreed or compromised total loss or compulsory acquisition of the Vessel (excluding any requisition for hire).
2. From the Delivery Date of the Vessel, the Borrower shall insure the Vessel, or procure that the Vessel is insured, in its
name and keep the Vessel and procure that the Vessel is kept insured on an agreed value basis for an amount in Dollars approved by the Collateral Agent,
provided
that:
(a) the insured value of the Vessel shall at all times be equal to or greater than its fair market value,
(b) the insured value of the Vessel shall be equal to or greater than [*] of the then applicable Total Commitment, and
(c) the hull and machinery insured value for the Vessel shall at all times be equal to no less than [*] of the
total insured value of the Vessel and no more than [*] of the total insured value of the Vessel shall consist of hull interest and freight interest insurance
through internationally recognized independent first class insurance companies, underwriters, war risks and protection and indemnity associations reasonably acceptable to the Collateral Agent in each
instance on terms and conditions approved by the Collateral Agent (with such approval not to be unreasonably withheld) including as to deductibles but at least in respect of:
(1) marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London
insurance markets under English marine policies, or the Norwegian Plan or Collateral Agent-approved policies containing the ordinary conditions applicable to similar vessels;
SCHEDULE 9.03
(2) war risks including the Missing Vessel Clause, terrorism, piracy and
confiscation, and, should Institute War and Strike Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(3) excess risks that is to say the proportion of claims for general average and salvage charges and under the
running down clause not recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
(4) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the Collateral Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period;
(5) when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks;
(6) such other risks as the Collateral Agent may from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in
respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Borrower or the Collateral Agent) such person shall if so required by the Collateral Agent execute a first
priority assignment and/or transfer of its interest in such insurances in favor of the Collateral Agent in similar terms mutatis mutandis to the relevant Assignment of Insurances.
3. The Collateral Agent at the cost of the Borrower or the Parent shall take out, in each case, for an amount in Dollars approved by the
Collateral Agent but not being, collectively, less than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Collateral Agent may reasonably require, the Parent
and the Borrower having no interest or entitlement in respect of such policies; the Collateral Agent undertakes to use its reasonable endeavors to match the premium level that the Borrower or the Parent would have paid if they had arranged such
cover on such conditions (as demonstrated to the reasonable satisfaction of the Collateral Agent).
4. If the Vessel shall
trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Borrower shall comply strictly with the
requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of the Vessel Mortgage and in particular before
such trade is commenced and during the entire period during which such trade is carried on the Borrower shall:
(i) pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit
available to it for the Vessel in the market;
SCHEDULE 9.03
(ii) make all such quarterly or other voyage declarations as may from
time to time be required by the Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Collateral Agent copies of such declarations;
(iii) submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by
the Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Collateral Agent copies of reports made in respect of such surveys;
(iv) implement any recommendations contained in the reports issued following the surveys referred to in sub-clause
(iii) above within the time limit specified therein and provide evidence satisfactory to the Collateral Agent that the protection and indemnity insurers are satisfied that this has been done;
(v) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Borrower or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the Collateral Agent
on demand with such information or evidence as it may reasonably require of such compliance;
(vi) procure that
the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Collateral Agent with evidence that this
is so; and
(vii) strictly comply with any operational or structural regulations issued from time to time by
any relevant authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution.
5. The Borrower shall give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form
reasonably approved by the Collateral Agent.
6. The Borrower shall execute and deliver all such documents and do all such
things as may be necessary to confer upon the Collateral Agent legal title to the Insurances in respect of the Vessel and to procure that the interest of the Collateral Agent is at all times filed with all slips, cover notes, policies and
certificates of entry and to procure (a) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the
Vessel and (b) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel.
7. At the Borrower’s expense the Borrower will cause such insurance broker and the P & I club or association providing P & I
insurance to agree to advise the Collateral
SCHEDULE 9.03
Agent by telex or telecopier confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act or
omission on the part of the Borrower of which it has knowledge and which might invalidate or render unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such unpaid premium or call, such right
being exercisable by the Collateral Agent on a vessel by vessel and not on a fleet basis. In addition, the Borrower or the Parent shall promptly provide the Collateral Agent with any information which the Collateral Agent reasonably requests for the
purpose of obtaining or preparing any report from an independent marine insurance consultant as to the adequacy of the insurances effected or proposed to be effected in accordance with the provisions contained herein as of the date hereof or in
connection with any renewal thereof, and the Borrower or the Parent shall upon demand indemnify the Collateral Agent in respect of all reasonable fees and other expenses incurred by or for the account of the Collateral Agent in connection with any
such report; provided the Collateral Agent shall be entitled to such indemnity only for one such report during any period of twelve months.
8. The Borrower shall procure that each of the relevant brokers and associations furnish the Collateral Agent with a letter of undertaking in such usual form as may be reasonably required by the
Collateral Agent and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel.
9. The Borrower shall punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel
and to produce all relevant receipts when so required by the Collateral Agent;
10. The Borrower shall renew each of the
Insurances on the Vessel at least [*] Business Days before the expiry thereof and give immediate notice to the Collateral Agent of such renewal and procure that the relevant brokers or associations shall promptly confirm in writing to the Collateral
Agent that such renewal is effected, it being understood by the Borrower that any failure to renew the Insurances on the Vessel at least [*] Business Days before the expiry thereof or to give or procure the relevant notices of such renewal shall
constitute an Event of Default.
11. The Borrower shall arrange for the execution of such guarantees as may from time to time
be required by any protection and indemnity and/or war risks association.
12. The Borrower shall furnish to the Collateral
Agent from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed.
13. The Borrower shall not agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the
Collateral Agent (which approval shall not be unreasonably withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Borrower’s consent, in which case the Borrower shall notify the
Collateral Agent of such variation in a timely manner) nor do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer
or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such
SCHEDULE 9.03
requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the Insurances is imposed as aforesaid and in the absolute
opinion of the Collateral Agent its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Collateral Agent would be adversely affected, the Borrower undertakes promptly to make such
changes to the Insurances, or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Borrower at that time, as the Collateral Agent shall reasonably require.
14. The Borrower shall not, without the prior written consent of the Collateral Agent, settle, compromise or abandon any
claim in respect of any of the Insurances on the Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss.
15. The Borrower shall promptly furnish the Collateral Agent with full information regarding any casualties or other accidents or damage
to the Vessel involving an amount in excess of [*].
16. The Borrower shall apply or ensure the appliance of all such sums
receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received.
17. In the event of the Borrower defaulting in insuring and keeping insured its Vessel as hereinbefore provided then the Collateral Agent
may (but shall not be bound to) insure the Vessel or enter the Vessel in such manner and to such extent as the Collateral Agent in its discretion thinks fit and in such case all the cost of effecting and maintaining such Insurance together with
interest thereon shall be paid on demand by the Borrower to the Collateral Agent.
SCHEDULE 10.01
EXISTING LIENS
None.
SCHEDULE 14.03A
CREDIT PARTY ADDRESSES
If to any Credit Party:
7665
Corporation Center Drive
Miami, Florida 33126
United States of America
Attn: Chief Financial Officer and General Counsel
With copies to
:
Apollo Management, L.P.
9 West 57
th
Street
New
York, NY 10019
Attn: Steve Martinez
Tel. No.: (212) 515-3200
Fax No.:
(212) 515-3288
and
O’Melveny & Myers LLP
7 Times
Square
New York, NY 10036
Attn:
Brad Finkelstein
Tel. No.: (212) 326-2000
Fax No.: (212) 326-2600
SCHEDULE 14.03B
LENDER ADDRESSES
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INSTITUTIONS
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ADDRESSES
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
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Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
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DNB NOR BANK ASA
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Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
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HSBC BANK PLC
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8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
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KFW IPEX-BANK GMBH
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Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:
claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
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NORDEA BANK NORGE ASA
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Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
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EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
KfW IPEX-Bank GmbH,
as
Facility Agent for the Lenders party
to the Credit Agreement
referred to below
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
]
Ladies and Gentlemen:
The
undersigned, BREAKAWAY ONE, LTD., a Bermuda company (the “
Borrower
”), refers to the Credit Agreement, dated as of [ ], 2010 (as amended, restated, novated,
modified and/or supplemented from time to time, the “
Credit Agreement
”, unless otherwise defined herein, capitalized terms defined therein being used herein as therein defined), among NCL CORPORATION LTD., a Bermuda company (the
“
Parent
”), the Borrower, the Lenders from time to time party thereto, you, as Facility Agent, Collateral Agent under the Security Documents and as CIRR Agent, NORDEA BANK NORGE ASA, as Documentation Agent, COMMERZBANK
AKTIENGESELLSCHAFT, as Hermes Agent, and the other parties thereto and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement, that the Borrower hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the “
Proposed Borrowing
”) as required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
(the “
Proposed Borrowing Date
”).
1
(ii) The portion of the Total Commitments to be utilized on the Proposed Borrowing Date (the “
Proposed Utilized Commitments
”) is
€
.
(iii) The initial
Interest Period for the Proposed Borrowing is
[month(s)].
2
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1
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Shall be a Business Day at least three Business Days after the date hereof,
provided
that (in each case) any such notice shall be deemed to have
been given on a certain day only if given before 11:00 a.m. (Frankfurt time) on such day (unless such 11:00 a.m. deadline is waived in the case of the Initial Proposed Borrowing Date).
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2
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The initial Interest Period for any Loan shall commence on the Proposed Borrowing Date of such Loan and each Interest Period occurring thereafter in
respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires and shall be for a three or six month period.
|
Exhibit A
Page 2
(iv) The Parent and/or the Borrower [have] [have not]
entered into Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes and/or the Yard on the Proposed Borrowing Date [and the Dollar Equivalent of the aggregate principal amount of the Proposed Utilized
Commitments is [ ]].
3
(v) The proceeds of the Proposed Borrowing shall be deposited in the following
accounts:
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Bank and Account No.
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Account Name
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Amount to be Disbursed
(indicate Dollars or
Euros)
4
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[ ]
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[
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]
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[
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]
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(vi) [Attached hereto as
Annex A
is evidence of the Earmarked Foreign Exchange Arrangements referred to in clause (iv) above.]
In
connection with the Proposed Borrowing, the Borrower hereby certifies as follows:
(i) As of the Proposed Borrowing Date, all
conditions and requirements under the Construction Contract required to be satisfied on such Proposed Borrowing Date have been satisfied, other than those that are not materially adverse to the Lenders.
(ii) Both on the date hereof and as of the Proposed Borrowing Date, the representations and warranties made by each Credit Party in or
pursuant to the Credit Documents are true and correct in all material respects, on and as of such Proposed Borrowing Date as if made on and as of such Proposed Borrowing Date, unless stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as of such earlier date.
(iii) Both on the date
hereof and as of the Proposed Borrowing Date after giving effect to the Proposed Borrowing, no Default or Event of Default is or will be continuing.
(...continued)
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3
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Dollar Equivalent to be included if the Borrower has entered into Earmarked Foreign Exchange Arrangements.
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4
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Euro disbursement only available if the Parent and/or the Borrower have not entered into Earmarked Foreign Exchange Arrangements.
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Exhibit A
Page 3
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Very truly yours,
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BREAKAWAY ONE, LTD.
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By:
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Name:
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Title:
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Annex A
Evidence of Earmarked Foreign Exchange Arrangements
[See attached.]
Aon BankAssure Insurance Services
EXHIBIT B-1
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
[[*] – – 10 pages]
Exhibit B- 2
Form of Exhibit B-2
[
Letterhead of Insurance Broker
]
To:
KFW IPEX-Bank GmbH, as Collateral Agent,
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Claudia Wenzel/
Christian Schweiger
Copy to:
Nordea Bank Norge ASA
DnB Nor Bank ASA
Deutsche Schiffsbank AG
HSBC Bank
plc
From:
[
Insert name of
Insurance Broker
]
Date: [
—
], 20[
—
]
Dear Sirs,
1. This Certificate is
delivered pursuant to Section 7.02 of the Credit Agreement dated as of [
—
], 2010 and made among Breakaway One, Ltd, as Borrower, NCL Corporation Ltd. (“
NCLC
”) as Parent, the
Lender Creditors from time to time party thereto and KFW IPEX-Bank GmbH, as Facility Agent, Collateral Agent and CIRR Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”).
Capitalized terms used and not otherwise defined in this Certificate shall have the meanings assigned to such terms in the Credit Agreement.
2. We hereby certify to you that, with respect to the Vessel, on and as of the date of this Certificate:
(i) the insurance cover referred to below is placed and maintained with such insurance companies and/or underwriters and/or clubs, in such amounts,
against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Facility Agent, the Collateral Agent, the CIRR Agent and/or the Lender Creditors as mortgagees of the Vessel; and
(ii) the insurance cover referred to in this Certificate conforms with the Required Insurances including (without limitation) hull and
machinery, war risks, loss of hire (if applicable) and protection and indemnity insurance set forth in Schedule 9.03 of the Credit Agreement.
3. The insurance cover referred to in paragraph 2(i) above comprises [
Insert description of the insurances maintained on the Vessel
.].
1
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Yours truly,
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For and on behalf of
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[
Insert name of Insurance Broker
]
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2
EXHIBIT C
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [
—
] 2010
KFW IPEX-BANK GMBH
(as Facility Agent)
KFW
(as CIRR Mandatary)
THE BANKS AND INSTITUTIONS
listed in Appendix 2
(as Lenders)
INTERACTION
AGREEMENT
in relation to an Export Credit Facility Agreement
dated 17 November 2010
Hull No. S.678 at Meyer Werft GmbH
Papenburg, Germany
Contents
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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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1
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2
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KfW IPEX-Bank GmbH as agent
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2
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3
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Advance, interest, repayment, prepayment, disbursement and netting
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3
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4
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Additional security
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4
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5
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Miscellaneous
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4
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6
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Counterparts and governing law
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6
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Appendix 1 Forms of Refinancing Agreement
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9
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Appendix 2 The Banks
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10
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THIS INTERACTION AGREEMENT
is made on [
—
] 2010
BETWEEN:
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(1)
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KFW IPEX-BANK GMBH
, acting through its office at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany acting as facility agent (in that capacity the
“
Facility Agent
” and “
CIRR Agent
”); and
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(2)
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KFW,
represented by KFW IPEX-BANK GMBH, acting through its office at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany (the “
CIRR
Mandatary
”); and
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(3)
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THE BANKS AND INSTITUTIONS
listed in Appendix 2 (the “
Lenders
” and any one of them a “
Lender
”).
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WHEREAS
this Interaction Agreement (the “
Agreement
”) is supplemental to:
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(A)
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a credit agreement dated 17 November 2010 relating to the financing of provisional hull number S.678 at Meyer Werft GmbH, Papenburg, Germany made between (among
others) (a) the Borrower, (b) the Parent, (c) the Lenders, (d) the Facility Agent, (e) the CIRR Agent, (f) the Collateral Agent, (g) the Documentation Agent and (h) the Hermes Agent pursuant to which the
Lenders will make available to the Borrower a multi-draw term loan credit facility in an aggregate principal amount of up to €529,846,154 (the “
Loans
”) to finance in part the acquisition of provisional hull no S.678 at the yard
of Meyer Werft GmbH and related fees (the “
Credit Agreement
”);
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(B)
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the refinancing agreements dated the date hereof relating to the Commitments of the Lenders entered into between CIRR Mandatary and each Bank (as defined below) in the
forms attached as Appendix 1 hereto (each a “
Refinancing Agreement
” and together the “
Refinancing Agreements
”);
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(C)
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the CIRR General Terms and Conditions as set out in Annex 2 to each Refinancing Agreement; and
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1
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Definitions and interpretation
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1.1
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Terms used in the Credit Agreement have the same meaning in this Agreement unless otherwise defined herein.
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1.2
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The following terms have the following meanings when used in this Agreement:
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“
Bank
” refers to each Lender both in its capacity as a Lender under the Credit Agreement and as the Bank under the relevant Refinancing Agreement.
“
KfW Rate
” means the interest rate payable to the CIRR Mandatary under the Refinancing Agreements.
“
Lender
” refers to a party both in its capacity as Lender under the Credit Agreement and as a Bank under a Refinancing
Agreement.
“
Refinancing Loan
” means the loan made by the CIRR Mandatary to a Bank pursuant to the Refinancing
Agreement to which that Bank is a party.
1
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1.3.1
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words denoting the plural number include the singular and vice versa;
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1.3.2
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words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
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1.3.3
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references to Recitals, Clauses, Sections and Appendices are references to recitals, clauses of, sections to and appendices to this Agreement;
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1.3.4
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references to this Agreement include the Recitals and the Appendices;
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1.3.5
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the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this
Agreement;
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1.3.6
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references to any document (including, without limitation, to all or any of the Credit Documents) are, unless the context otherwise requires, references to that
document as amended, supplemented, novated or replaced from time to time;
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1.3.7
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references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted;
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1.3.8
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references to any Lender, Bank or Secured Creditor include its successors, permitted transferees and permitted assignees; and
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1.3.9
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references to times of day are to Frankfurt am Main time;
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1.4
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This Agreement operates to amend and supplement the Refinancing Agreement in accordance with its terms and in the event of any inconsistency between (i) the terms
of the Refinancing Agreement and the CIRR General Terms and Conditions incorporated therein and (ii) this Agreement, the terms of this Agreement will prevail.
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2
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KfW IPEX-Bank GmbH as agent
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2.1
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The CIRR Mandatary and all Banks agree that the Facility Agent will act as the agent of the Banks for the purposes of all Refinancing Agreements in relation to the
following matters:
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2.1.1
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confirmation to the CIRR Mandatary of the fulfilment of conditions precedent in relation to the delivery of a Drawdown Notice, under section 5.1 of each
Refinancing Agreement;
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2.1.2
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making disclosures to the CIRR Mandatary of circumstances pertaining to the Loans, its proper repayment or collateralisation available on a regular basis as required
under sections 8.2 and 9.1 of each Refinancing Agreement. The Facility Agent will however only disclose such information that is available to it;
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2
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2.1.3
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notification of all amendments and addenda to the Credit Agreement under section 9.2 of each Refinancing Agreement; and
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2.1.4
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immediately to report if, by the conclusion of each Refinancing Agreement, there are material changes or additions to the information given at the time of the
application for an interest make-up commitment as required under section 9.1 of the CIRR General Terms and Conditions.
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The CIRR Mandatary agrees to accept performance by the Facility Agent as the agent and assistant of the Banks, as applicable according to Clause 2.1 above, as aforesaid to the CIRR Mandatary as full
performance of all Banks’ obligations under the relevant sections of the Refinancing Agreements.
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2.2
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The Facility Agent further agrees to act as agent or assistant of each Bank, as applicable according to Clause 2.1 above, in its capacity as the Facility Agent, to
notify the Parent and the Borrower of the conclusion of each Refinancing Agreement with the CIRR Mandatary.
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2.3
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The Banks, the CIRR Mandatary and the Facility Agent agree in relation to section 4.2 of each Refinancing Agreement that the Facility Agent has been appointed as the
Facility Agent on behalf of all Banks and in such capacity will discharge the responsibilities of all Banks under section 4.2 of each Refinancing Agreement and further agree that the Facility Agent will discharge those responsibilities for itself
and all Banks if it acts in accordance with the customary standards and duties of facility agents in high value syndicated loan transactions.
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3
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Advance, interest, repayment, prepayment, disbursement and netting
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3.1
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Notwithstanding the provisions of section 5.3 of each Refinancing Agreement and section 2 of the Credit Agreement, the CIRR Mandatary agrees that the amount to be
advanced by way of each Refinancing Loan under each Refinancing Agreement, will be advanced to the Facility Agent as the Facility Agent for and on behalf of each Bank by no later than 12.00 p.m. (Frankfurt time) on the day it is advanced and the
parties to this Agreement agree that the loan as funded by the relevant Refinancing Agreement will be advanced by the Facility Agent to the Borrower in accordance with section 2 of the Credit Agreement.
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3.2
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The CIRR Mandatary and each Lender agree that the distribution by the Facility Agent to the Lenders of payments of interest on the Loan by the Borrower and payments of
interest on its Refinancing Loan by each Lender will be made on a net basis so that on each date for the payment of interest under the Credit Agreement the following payments will be made in discharge of the said payment obligations:
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3.2.1
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the Borrower will pay to the Facility Agent for the account of the Lenders an amount equal to the interest due on the outstanding Loan;
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3.2.2
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the Facility Agent will distribute to the Lenders according to their respective pro rata shares out of the payment received from the Borrower an amount equal to the
Applicable Margin plus Mandatary Costs (if any) then payable on the outstanding Loan minus the sum of the refinancing mark-up and the risk margin set out in sections 2.2.11, 7.6 of each Refinancing Agreement; and
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3
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3.2.3
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the Facility Agent will pay to the CIRR Mandatary out of the payment received from the Borrower an amount equal to interest at the KfW Rate then payable on the
Refinancing Loans.
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3.3
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The Facility Agent agrees to pay to the CIRR Mandatary on behalf of each Lender all amounts received by the Facility Agent in respect of repayments of principal of the
Loan, on the due date for payment to the CIRR Mandatary of repayments of the Refinancing Loans under the Refinancing Agreements and the Lenders irrevocably authorize the Facility Agent to make such payments. The Facility Agent agrees to provide
notice to each Lender upon each payment to the CIRR Mandatary under this Clause 3.3. The Facility Agent agrees to provide notice to each Lender upon each payment to the CIRR Mandatary under this Clause 3.3.
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3.4
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The parties hereto agree that any disbursements under the Refinancing Agreements will be made directly from the CIRR Mandatary to the Facility Agent for the purpose of
disbursement to the Borrower, to the Yard or to Hermes, as applicable.
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3.5
|
The Facility Agent agrees to pay to the CIRR Mandatary on behalf of each Lender all amounts received by the Facility Agent in respect of the Commitment Commission or
other fees according to sections 2.08, 2.09, 3, 4.04, 14.01 and 14.05 of the Credit Agreement and section 6.4 of the relevant Refinancing Agreement.
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The
CIRR Mandatary agrees that it shall only be entitled to call for additional security in respect of any Refinancing Loan pursuant to section 8 of the relevant Refinancing Agreement if the relevant Bank’s long term issuer rating in foreign
currencies falls below A- (Standard & Poor’s) or A3 (Moody’s) or comparable rating of an internationally recognised rating agency. In the event that the CIRR Mandatary calls for additional security in such circumstances and
appropriate security is not provided then the CIRR Mandatary will have the right to exercise its rights to terminate such Refinancing Agreement pursuant to section 10.1 thereof.
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5.1
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No party may assign its rights under this Agreement other than together with an assignment of its rights under and in accordance with the Credit Agreement.
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5.2
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All Banks except for Deutsche Schiffsbank Aktiengesellschaft agree that KfW IPEX-Bank GmbH shall be released from the restrictions of § 181 BGB
(
Bürgerliches Gesetzbuch;
German Civil Code) in respect of this Agreement. In an event of conflict under § 181 BGB (
Bürgerliches Gesetzbuch;
German Civil Code) Deutsche Schiffsbank Aktiengesellschaft will give the
approval with regard to the relevant act or legal transaction (
Rechtsgeschäft
) of KfW IPEX-Bank GmbH subsequently (
nachträgliche Zustimmung, (Genehmigung)
§ 184 para. 1 BGB (
Bürgerliches Gesetzbuch;
German
Civil Code)).
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5.3
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The parties agree that clause 11 a) of each Refinancing Agreement will not apply to the Credit Agreement under which Breakaway One Ltd. is the Borrower.
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4
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5.4
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The parties agree that should at any time, any provisions of this Agreement be or become void (
nichtig
), invalid or due to any reason ineffective
(
unwirksam
) this will indisputably (
unwiderlegbar
) not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or ineffective provisions, without
any party having to argue (
darlegen
) and prove (
beweisen
) the parties’ intent to uphold this Agreement even without the void, invalid or ineffective provisions.
|
The void, invalid or ineffective provisions shall be deemed replaced by such valid and effective provisions that in legal and economic
terms comes closest to what the parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement.
|
|
5.5
|
No failure to exercise, nor any delay in exercising, on the part of any party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single
or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by
law.
|
|
|
5.6
|
Every notice, request, demand or other communication under this Agreement shall:
|
|
|
5.6.1
|
be in writing delivered personally or by first-class prepaid letter (airmail if available) or facsimile (confirmed in the case of facsimile by first-class prepaid
letter sent within twenty-four (24) hours of despatch of the facsimile but so that the non-receipt of such confirmation shall not affect in any way the validity of the facsimile in question);
|
|
|
5.6.2
|
be deemed to have been received, subject as otherwise provided in this Agreement, if delivered personally, when delivered or in the case of a first class prepaid
letter, five (5) Business Days after it has been put in the post, in the case of a facsimile at the time of despatch with electronic or other confirmation of receipt (provided that if the date of despatch is not a business day in the country of
the addressee, it shall be deemed to have been received at the opening of business on the next such business day) or if by electronic mail in accordance with Clause 8.6; and
|
|
|
(1)
|
if to be sent to the Facility Agent, at:
|
KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
|
Attn:
|
Claudia Wenzel and Christian Schweiger
|
|
|
Tel No:
|
(49) 69 7431 2625 / 4037
|
|
|
Fax No:
|
(49) 69 7431 2944
|
5
|
|
(2)
|
if to be sent to a Bank, to it at its address and facsimile number set forth in Appendix 2;
|
|
|
(3)
|
if to be sent to the CIRR Mandatary, at:
|
KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
|
Attn:
|
Markus Kristen and Anja Demisch
|
|
|
Tel No:
|
(49) 69 7431 4687 / 3621,
|
|
|
Fax No:
|
(49) 69 7431 2944
|
or to such
other address and facsimile number as is notified by one party to the other parties under this Agreement by not less than five (5) Business Days’ written notice.
|
|
5.7.1
|
communication to be made in connection with this Agreement may be made by electronic mail or other electronic means, if the relevant parties:
|
|
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
|
|
(b)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
|
|
(c)
|
notify each other of any change to their address or any other such information supplied by them; and
|
|
|
5.7.2
|
electronic communication made between any parties hereunder will be effective only when actually received in readable form and acknowledged by the recipient (it being
understood that any system generated responses do not constitute an acknowledgement) and only if it is addressed in such a manner as the recipient shall specify for this purpose.
|
|
|
5.8
|
No Lender may assign its rights under this Agreement other than together with an assignment of its rights under and in accordance with the Credit Agreement.
|
|
6
|
Counterparts and governing law
|
|
|
6.1
|
This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument.
|
|
|
6.2
|
This Agreement and all claims arising in connection with it are governed by, and are to be construed in accordance with, the laws of the Federal Republic of Germany.
|
6
|
|
6.3
|
The courts of Frankfurt am Main shall have jurisdiction in respect to all disputes out of or relating to this Agreement.
|
IN WITNESS
of which the parties to this Agreement have executed this Agreement the day and year first before written.
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
(as the Facility Agent)
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
KfW IPEX-BANK GMBH,
duly
authorised for and on behalf of
KFW
|
|
)
|
|
(as the CIRR Mandatary)
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
DEUTSCHE SCHIFFSBANK
|
|
)
|
|
AKTIENGESELLSCHAFT
|
|
)
|
|
(as Lender)
|
|
)
|
|
in the presence of:
|
|
)
|
7
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
DnB NOR BANK ASA
|
|
)
|
|
(as Lender)
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
HSBC BANK PLC
|
|
)
|
|
(as Lender)
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
)
|
|
duly authorised for and on behalf of
|
|
)
|
|
NORDEA BANK NORGE ASA
|
|
)
|
|
(as Lender)
|
|
)
|
|
in the presence of:
|
|
)
|
8
Appendix 1
Forms of Refinancing Agreement
9
Appendix 2
The Banks
[*]
10
EXHIBIT D
FORM OF SECRETARY’S CERTIFICATE
OF
CREDIT PARTIES
[ ], 2010
The undersigned Secretary of each of the entities listed on
Schedule I
hereto (each, a “
Credit Party
”) does
hereby certify the following to KfW IPEX-Bank GmbH (“
KfW IPEX
”), as Facility Agent in connection with the Credit Agreement, dated as of [ ], 2010, among NCL
Corporation Ltd., Breakaway One, Ltd., as Borrower, the Lenders from time to time party thereto, KfW IPEX, as Facility Agent, as Collateral Agent under the Security Documents and as CIRR Agent, Nordea Bank Norge ASA, as Documentation Agent and
Commerzbank Aktiengesellschaft, as Hermes Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”). All capitalized terms used in this certificate shall have the meanings assigned
to them in the Credit Agreement, unless otherwise defined in this certificate.
1. Attached hereto as
Exhibit A
is a
true and complete copy of minutes or resolutions duly adopted by the board of directors (or equivalent) of each Credit Party authorizing, among other things, the execution, delivery and performance of the Credit Documents to which such Credit Party
is a party, and such minutes or resolutions (or equivalent) have not since their adoption been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and are in full force and effect on the date hereof.
2. Attached hereto as
Exhibit B
is a true, correct and complete copy of the certificate of incorporation and by-laws or
equivalent organizational documents of each Credit Party, each of which is as of the date hereof in full force and effect.
3.
The persons whose names appear on
Exhibit C
hereto are, as of the date hereof, duly elected or appointed, as applicable, qualified, and acting officers or directors of each Credit Party, holding the offices or directorships set forth beside
their names, and are authorized to execute and deliver the Credit Documents on behalf of such Credit Party, and the signature appearing next to each name is the genuine signature of such officer or director.
4. On the date hereof, the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true
and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof, both before and after giving effect to the incurrence of Loans on the date hereof and the application of the
proceeds thereof, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date.
5. On the date hereof, no Default or Event of Default has occurred and is continuing or would result from the Borrowing to occur on the
date hereof or from the application of the proceeds thereof.
6. There is no proceeding for the dissolution or liquidation of
any Credit Party or threatening any Credit Party’s existence.
IN WITNESS WHEREOF, each of the Credit Parties has caused this Secretary’s Certificate
to be executed and delivered by its duly authorized representative as of the date first set forth above.
|
|
|
|
|
NCL CORPORATION LTD.
NCL INTERNATIONAL, LTD.
BREAKAWAY ONE, LTD.
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Daniel S. Farkas
|
|
Title:
|
|
Secretary
|
I, Kevin M. Sheehan, President and Chief Executive Officer of NCL Corporation Ltd., NCL
International, Ltd. and Breakaway One, Ltd. hereby certify that Daniel S. Farkas is the duly elected or appointed, as applicable, and qualified Secretary of NCL Corporation Ltd., NCL International, Ltd. and Breakaway One, Ltd. and that the signature
appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first set forth
above.
|
|
|
|
|
|
|
|
|
Name:
|
|
Kevin M. Sheehan
|
|
Title:
|
|
President and Chief Executive Officer
|
Schedule I
Credit Parties
NCL
Corporation Ltd.
NCL International, Ltd.
Breakaway One, Ltd.
Exhibit A
Resolutions
Exhibit B
Organizational Documents
Exhibit C
Incumbency
NCL
Corporation Ltd.
NCL International, Ltd.
Breakaway One, Ltd.
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel S. Farkas
|
|
|
|
Senior Vice President
General Counsel Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin M. Sheehan
|
|
|
|
President
Chief Executive
Officer
|
|
|
|
|
|
|
EXHIBIT E
F
ORM
O
F
T
RANSFER
C
ERTIFICATE
|
To:
|
[ ] as Facility Agent and
[ ] as Hermes Agent
|
|
From:
|
[
The Existing Lender
] (the “
Existing Lender
”) and [
The New Lender
] (the “
New Lender
”)
|
Breakaway One, Ltd. –
€529,846,154 Credit Agreement
dated [ ] (the
“Credit Agreement”)
|
1.
|
We refer to the Credit Agreement and to the Intercreditor Agreement (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall take
effect as a Transfer Certificate for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
|
2.
|
We refer to Section 13.06 (
Procedure and Conditions for Transfer
) of the Credit Agreement:
|
|
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule attached hereto in accordance with Section 13.06 (
Procedure and Conditions for Transfer
).
|
|
|
(b)
|
The proposed date of transfer is [ ].
|
|
|
(c)
|
The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule attached hereto.
|
|
3.
|
On the date of the transfer the New Lender becomes:
|
|
|
(a)
|
Party to the relevant Credit Documents (other than the Intercreditor Agreement and the Security Trust Deed) as a Lender; and
|
|
|
(b)
|
Party to the Intercreditor Agreement as an ECF Lender; and
|
|
|
(c)
|
Party to the Security Trust Deed as a Secured Creditor[.][; and]
|
|
|
(d)
|
[Party to the Interaction Agreement.]
1
|
|
4.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
|
|
1
|
Applicable to any New Lender that elects to become a Refinanced Bank.
|
EXHIBIT E
2
|
5.
|
We refer to Clause 9.2 (
Change to the Lenders
) of the Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) of the Security Trust Deed
|
|
|
(a)
|
In consideration of the New Lender being accepted as an ECF Lender for the purposes of the Intercreditor Agreement (and as defined therein), the New Lender confirms
that, as from the date of transfer, it intends to be party to the Intercreditor Agreement as an ECF Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an ECF Lender and agrees that it
shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
|
|
(b)
|
In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the transfer, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
|
|
6.
|
We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the transfer becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
|
7.
|
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.
|
|
8.
|
This Agreement takes effect as a deed.
|
|
9.
|
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
|
10.
|
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with English law.
|
|
Note:
|
The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It
is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
|
EXHIBIT E
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Notice Office address, fax number and attention details for notices and account details for payments
]
EXHIBIT E
SIGNATORIES
[Existing Lender]
|
|
|
|
|
|
|
Executed as a deed by
[name of Existing Lender]
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
[New Lender]Executed as a deed by
[name of New Lender]
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
This Agreement is accepted as a Transfer
Certificate for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the transfer is confirmed as [ ].
EXHIBIT
E 5
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the transfer referred to in this Agreement, which notice the Facility Agent
receives on behalf of each Lender Creditor.
[Facility Agent]
|
|
|
|
|
|
|
Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
[Hermes Agent]
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
[NCL Corporation
Ltd.]
2
[Signed as a deed by [
NCL Corporation Ltd
.], a
company incorporated in Bermuda, by [
full name(s)
of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory, [is][are]
acting under the authority of the company.
|
2
|
To be signed by the Company only if the transfer is pursuant to section 13.01(a)(ii)
|
EXHIBIT
E 6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature(s)
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
|
|
EXHIBIT F
|
SHARE CHARGE
relating to shares in
BREAKAWAY ONE, LTD.
Dated December 2010
|
(1)
|
NCL INTERNATIONAL, LTD.
|
milner house
I8 parliament street
p.o. box hm 1561
hamilton hm fx
bermuda
telephone: (441) 295-4630
fax:
(441) 292-7880
website:
www.chw.com
©
copyright cox hallett wilkinson
|
|
|
|
|
Share Charge
|
|
|
DATE
December 2010
PARTIES
|
(1)
|
NCL INTERNATIONAL, LTD., a company organised and existing under the laws of Bermuda, having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12
(the “Chargor”); and
|
|
(2)
|
KFW IPEX-BANK GMBH, a company incorporated under the laws of Germany whose business address is at 5-9, 60325 Frankfurt am Main, Germany, as collateral agent for the
Secured Creditors (as defined below) (the “Collateral Agent”).
|
INTRODUCTION
|
(A)
|
By a credit agreement dated 18 November 2010 (as may be modified, supplemented, novated or amended from time to time, the “Credit Agreement”) and made
between, among others, (i) the Borrower (as defined below), (ii) various parties defined therein as lenders (the “Lenders”) and (iii) the Collateral Agent, the Lenders agreed, among other things, to make available to the
Borrower, upon the terms and conditions set forth therein, a multi-draw term loan credit facility of up to €529,846,154 (the “Facility”).
|
|
(B)
|
By one or more Interest Rate Protection Agreements or Other Hedging Agreements (each as defined in the Credit Agreement) entered into from time to time and by, among
others, the Borrower and/or NCL Corporation Ltd. and one or more Lenders or any affiliate thereof, the financial institutions party to such agreements shall have provided interest rate, foreign exchange or other derivative arrangements to the
Borrower and/or NCL Corporation Ltd.
|
|
(C)
|
At the date of this Charge, 12,000 ordinary shares of the Borrower are legally and beneficially owned by the Chargor (the “Issued Shares”).
|
-1-
|
|
|
|
|
Share Charge
|
|
|
|
(D)
|
It is one of the conditions precedent to the Lenders advancing or continuing to advance the Facility, or any part thereof, to the Borrower under the Credit Agreement
that the Chargor enters into this Charge.
|
DEFINITIONS
|
(1)
|
In this Charge, unless contrary to or inconsistent with the context:
|
|
|
|
|
|
Borrower
|
|
means Breakaway One, Ltd., a company incorporated and existing under the laws of Bermuda;
|
|
|
|
|
Dollar and US$
|
|
means the lawful currency of the United States of America;
|
|
|
|
|
Event of Default
|
|
means any event specified as such in section 11 of the Credit Agreement;
|
|
|
|
|
Lender Creditors
|
|
means the Lenders and each Agent under the Credit Agreement;
|
|
|
|
|
Lien
|
|
means a charge, mortgage, hypothecation, title retention, pledge, lien, security interest or other encumbrance, whether fixed or floating and howsoever created or
arising;
|
|
|
|
|
Other Creditors
|
|
means any Lender or any affiliate thereof and their successors, transferees and assignees if any (even if such Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assignees, with which the Parent and/or the Borrower enters into any Interest Rate Protection Agreements or Other Hedging Agreements from
time to time;
|
|
|
|
|
Secured Creditors
|
|
means collectively (i) the Lender Creditors and (ii) the Other Creditors;
|
|
|
|
|
Secured Obligations
|
|
has the meaning ascribed thereto in the Credit Agreement;
|
-2-
|
|
|
|
|
Share Charge
|
|
|
|
|
|
|
|
Security Assets
|
|
has the meaning set out in clause 1(a);
|
|
|
|
|
Security Period
|
|
means the period commencing on the date of this Charge and ending on the date upon which the Collateral Agent has informed the Chargor that all the Secured Obligations have been
irrevocably discharged in full; and
|
|
|
|
|
Shares
|
|
means the Issued Shares and the Additional Shares (as defined in clause 1(a)(ii)).
|
INTERPRETATION
|
(2)
|
In this Charge unless contrary to or inconsistent with the context:
|
|
|
(a)
|
capitalised terms used herein (and not otherwise defined herein) shall have the meaning ascribed thereto in the Credit Agreement;
|
|
|
(b)
|
words (including, without limitation, defined terms) importing:
|
|
|
(i)
|
the singular include the plural and vice versa; and
|
|
|
(ii)
|
any gender includes all genders;
|
|
|
(c)
|
a reference to a party or person includes a reference to that party or person and its successors, transferees, substitutes (including, but not limited to, any party or
person taking by novation), executors, administrators and assignees;
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(d)
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the word “person” includes an individual, any entity having separate legal personality under the laws governing its formation, partnerships and trusts
(whether or not having separate legal personality), companies, corporations, unincorporated organisations and any government, department or agency thereof;
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(e)
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a reference to any thing or any matter (including, but not limited to, the Secured Obligations, any other amount and the Security Assets) is a reference to the whole
and any part of it;
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-3-
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(f)
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a reference to this Charge, or any other document includes any variation, novation or replacement of or supplement to any of them from time to time;
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(g)
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a reference to a clause or Schedule means a reference to a clause or Schedule of this Charge;
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(h)
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where any clause contains sub-clauses, paragraphs or sub-paragraphs, each sub-clause, paragraph and sub-paragraph however called may be read and construed separately
and independently of each other;
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(i)
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a reference (whether specific or general) to a statute or to any other legislation includes any code, ordinance or other law, and any regulation, rule or bye-law or
other instrument made under it, and all official directives (if any) and all amendments, consolidations, re-enactments or substitutions of any of them from time to time;
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(j)
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a reference to a document includes any deed, agreement in writing, or any certificate, notice, instrument or other document of any kind;
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(k)
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“writing” and related expressions includes all means of reproducing words in a tangible and permanently visible form;
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(l)
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any agreement, undertaking, acknowledgment, condition or other term that is made or given by the Chargor is deemed to be a covenant in favour of and for the benefit of
the Lender;
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(m)
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headings are inserted for guidance only and do not affect the interpretation of this Charge; and
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(n)
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an Event of Default is “subsisting” until it has been waived in writing by, or remedied to the satisfaction of, the Collateral Agent.
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OPERATIVE PROVISIONS
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Share Charge
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As a continuing security for the Secured Obligations, the Chargor, as legal and
beneficial owner, hereby:
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(a)
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charges and agrees to charge in favour of the Collateral Agent, all of its right, title and interest in and to the following property (collectively the “Security
Assets”) as a first fixed security for the Secured Obligations:
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(i)
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the Issued Shares and any interest it has in the entries on the books of any financial intermediary pertaining to such Issued Shares, and all cash, warrants, rights,
instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect or in exchange for any or all of such Issued Shares;
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(ii)
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all additional shares of, and all securities convertible into and warrants, options and other rights to purchase or otherwise acquire, stock, shares or other securities
of the Borrower acquired by it in any manner during the Security Period (which shares and securities shall be deemed to be part of the Shares) or any other rights and any interest in the entries on the books of any financial intermediary pertaining
to such additional shares (all such shares, securities, warrants, options, rights, certificates, instruments and interests collectively being “Additional Shares”) and all cash, warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Additional Shares;
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(iii)
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all dividends or interest paid or payable by the Company after the date of and during the continuance of an Event of Default on all or any of the Shares; and
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(iv)
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to the extent not covered by paragraphs (i) through (iii) above, all proceeds of any or all of the foregoing Security Assets. For the purposes of this Charge,
the term “proceeds” includes whatever is receivable or received when the Security Assets or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary; and
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-5-
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Share Charge
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(b)
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undertakes to deposit forthwith with the Collateral Agent, and in such manner as the Collateral Agent may direct the following:
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(i)
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all share certificates in respect of the Issued Shares;
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(ii)
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a duly executed undated share transfer form in respect of the Issued Shares in favour of the Collateral Agent or its nominee;
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(iii)
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an undertaking from the Company to register transfers of the Shares to the Collateral Agent or its nominee (in the form set out in Schedule 1); and
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(iv)
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an irrevocable proxy from the Chargor to the Collateral Agent entitling the Collateral Agent to vote in respect of the Shares and exercise all other rights, powers and
privileges and remedies to which a holder of shares would be entitled (in the form set out in Schedule 2); and
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(c)
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undertakes to deliver, or cause to be delivered, to the Collateral Agent promptly following the issue of any Additional Shares held by the Chargor at any time after the
date hereof, the items listed in clauses 1(b)(i) and (ii) in respect of all such Additional Shares,
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provided that, upon irrevocable payment in full in Dollars of the Secured Obligations, the Collateral Agent will, at the request and
expense of the Chargor, release to the Chargor all the rights, title and interest of the Collateral Agent in or to the Security Assets.
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2.
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Preservation of Security
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2.1
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The security constituted by this Charge shall be continuing and not satisfied by an intermediate payment or satisfaction of the whole or any part of the Secured
Obligations but shall secure the ultimate balance of the Secured Obligations. The security hereby given shall be in addition to any other Lien now or hereafter held by the Collateral Agent for all or any of the Secured Obligations, and the
Collateral Agent’s rights under this Charge shall not be postponed, lessened or otherwise prejudicially affected or merged in any other such security.
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-6-
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2.2
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The obligations of the Chargor hereunder and the security constituted by this Charge shall not be affected by any act, omission or circumstances which but for this
provision might operate to release or otherwise exonerate the Chargor from its obligations hereunder or affect such obligations including without limitation and whether or not known to either of the Chargor or the Collateral Agent:
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(a)
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any time or indulgence granted to any person including the Company, or the Chargor;
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(b)
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the variation, extension, compromise, renewal or release of, or refusal or neglect to perfect or enforce any terms of this Charge; and
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(c)
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any irregularity, invalidity or unenforceability of any obligations of the Chargor under this Charge or any present or future law or order of any government authority
(whether of right or in fact) purporting to reduce or otherwise affect any of such obligations under this Charge which shall be construed accordingly as if there were no such irregularity, unenforceability, invalidity, law or order provided that any
such construction shall not cause the Chargor to be in breach or contravention of any applicable law or order.
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2.3
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Where any discharge (whether in respect of this Charge or otherwise) is made in whole or in part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be repaid on bankruptcy, liquidation or otherwise without limitation, the security constituted by this Charge and the liability of the Chargor under this Charge shall continue as if there had been no such
discharge or arrangement.
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3.
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Warranties and Undertakings
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3.1
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The Chargor hereby warrants and represents to the Collateral Agent that:
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(a)
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it is the legal and registered owner of the Issued Shares and, if and when acquired, the Additional Shares and it has not transferred, assigned, charged or in any way
encumbered the whole or any part of the Security Assets;
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-7-
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Share Charge
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(b)
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the Issued Shares constitute all of the issued and outstanding shares in the share capital of the Company at the date of this Charge;
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(c)
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the Issued Shares have been duly authorised, validly issued and are fully paid and non-assessable;
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(d)
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neither the Chargor nor the Company has granted any options or other rights of any nature in respect of the Issued Shares, or any other shares in the share capital of
the Company to any third party;
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(e)
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it is authorised in every respect to make this Charge and its obligations hereunder constitutes its legal, valid and binding obligations enforceable against it in
accordance with its terms; and
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(f)
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this Charge, when duly registered, will create a valid security interest in the Security Assets securing the payment of the Secured Obligations and, following execution
of this Charge, all filings and other actions necessary or reasonably desirable to perfect such security interest will be duly made or taken.
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3.2
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The Chargor hereby undertakes to the Collateral Agent that during the Security Period:
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(a)
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it will remain the legal and registered owner of the Issued Shares and, if and when acquired, the Additional Shares and will not transfer, assign, charge or otherwise
encumber hereafter, the whole or any part of the Security Assets to anyone other than the Collateral Agent, unless with the prior written approval of the Collateral Agent, which approval may be arbitrarily withheld unless (i) such transfer does
not violate the terms of the Security Documents and (ii) any such transferee charges the Security Assets pursuant to an agreement which, in the opinion of the Collateral Agent, grants security to the Collateral Agent equivalent to this Charge;
and
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-8-
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Share Charge
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(b)
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it shall exercise its powers as a Chargor of the Company to procure that the Company will not issue new shares or classes of shares or register the transfer of shares
without the prior written approval of the Collateral Agent.
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3.3
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Upon the Collateral Agent being satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, and following a written
request therefor from the Chargor, the Collateral Agent will, subject to being indemnified to its reasonable satisfaction for the costs and expenses incurred by the Collateral Agent in connection therewith, release the security constituted by this
Charge and forthwith return to the Chargor any and all share certificates representing the Security Assets.
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The Chargor
hereby authorises the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default to arrange for the Security Assets to be registered (if required by the Collateral Agent to perfect or ensure the priority of
the Collateral Agent’s security therein) and (under the powers of realisation herein conferred) to transfer or cause the Security Assets to be transferred to and registered in the name of the Collateral Agent or in the name of any purchasers or
transferees from, or nominees of, the Collateral Agent and the Chargor undertakes from time to time to execute and sign all transfers, powers of attorney and other documents which the Collateral Agent may reasonably require for perfecting its title
to any of the Security Assets or for vesting the same in its title to any of the Security Assets or for vesting the same in it or in its nominees or in any purchasers or transferees of or from it.
The Collateral
Agent may on notice to the Chargor at any time after the occurrence and during the continuance of an Event of Default exercise at its discretion (in the name of any Chargor or otherwise) and without any further consent or authority on the part of
the Chargor in respect of any of the Security Assets, any voting rights and any powers or rights which may be exercised by
-9-
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Share Charge
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the Collateral Agent or by the person or persons in whose name or names the Security Assets are registered or who is the holder thereof under the terms thereof or otherwise including, but without
limitation, all the powers given to trustees under the laws of Bermuda in respect of securities or property subject to a trust; provided that upon the taking of any such action the Collateral Agent will immediately give notice to the Chargor and
that in the absence of any such notice, the Chargor may and shall continue to exercise any and all rights with respect to the Security Assets, subject always to the terms hereof.
The
Collateral Agent hereby acknowledges that until an Event of Default shall have occurred and be continuing, the Chargor shall be entitled to (a) vote or cause to be voted any and all of the Security Assets and (b) give or cause to be given
consents, waivers and ratifications in respect thereof, provided, however, that no vote shall be cast or consent, waiver or ratification given or taken which would be inconsistent with any of the provisions of this Charge or would jeopardise the
exercise by the Collateral Agent of its rights under this Charge. All such rights of the Chargor to vote or cause to be voted and to give or cause to be given consents, waivers and ratifications shall cease automatically, where an Event of Default
occurs and is continuing.
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7.
|
Enforcement of Security
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Upon, at any time after the occurrence of, and during the continuance of an Event of Default the Collateral Agent shall be entitled to put
into force and exercise immediately, without further notice to the Chargor (without prejudice to the notice of default under section 11 of the Credit Agreement), as and when it may see fit, any and every power possessed by it by virtue of this
Charge and, in particular (without prejudice to the generality of the foregoing):
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(a)
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may solely and exclusively exercise all voting and/or consensual powers pertaining to the Security Assets or any part thereof and may exercise such powers in such
manner as the Collateral Agent may think fit;
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-10-
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Share Charge
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(b)
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may remove the then existing directors and officers (with or without cause) by dating and presenting the undated, signed letters of resignation delivered pursuant to
this Charge;
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(c)
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may receive and retain all dividends, interest or other monies or assets accruing on or in respect of the Security Assets or any part thereof, such dividends, interest
or other monies or assets to be held by the Collateral Agent, until applied in the manner described in clause 7(g), as additional security charged under and subject to the terms of this Charge and any such dividends, interest or other monies or
assets received by the Chargor after such time shall be held in trust by the Chargor for the Collateral Agent and paid or transferred to the Collateral Agent on demand;
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(d)
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may sell, transfer, grant options over or otherwise dispose of the Security Assets or any part thereof at such place and in such manner and at such price or prices as
the Collateral Agent may deem fit subject to and in accordance with the prior authorisation and consent of the Bermuda Monetary Authority in so far as the sale, transfer, grant or option or disposal concern the Shares, and thereupon the Collateral
Agent shall have the right to deliver, assign and transfer in accordance therewith the Security Assets so sold, transferred, granted options over or otherwise disposed of;
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(e)
|
the Collateral Agent shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Charge or to make any claim or to
take any action to collect any monies assigned by this Charge or to enforce any rights or benefits assigned to the Collateral Agent by this Charge or to which the Collateral Agent may at any time be entitled hereunder;
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(f)
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upon any sale of the Security Assets or any part thereof by the Collateral Agent the purchaser shall not be bound to see or enquire whether the Collateral Agent’s
power of sale has become exercisable in the manner provided in this Charge and the sale shall be deemed to be within the power of the Collateral Agent, and the receipt of the Collateral Agent for the purchase money shall effectively discharge the
purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor provided that the purchaser purchases the Security Assets in an arm’s-length transaction;
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-11-
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Share Charge
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(g)
|
all monies received by the Collateral Agent pursuant to this Charge shall be held by it upon trust and shall be applied by it in accordance with section 4.05 of the
Credit Agreement;
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(h)
|
neither the Collateral Agent nor its agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost
or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of gross negligence or dishonesty;
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(i)
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the Collateral Agent shall not by reason of the taking of possession of the whole or any part of the Security Assets or any part thereof be liable to account as
mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default of omission for which a mortgagee-in-possession might be liable; and
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(j)
|
the powers provided in this Charge are cumulative with and not exclusive of powers provided by law or equity independently of this Charge.
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8.1
|
In addition to the powers conferred in this Charge, at any time after the security hereby created shall become enforceable, the Collateral Agent may appoint in writing
a receiver or a receiver and manager (herein the “Receiver”) of all or any part of the Security Assets and may remove the Receiver so appointed and appoint another in his stead and may from time to time fix the remuneration of the
Receiver. The power to appoint a Receiver over all the Security Assets may be exercised whether or not a Receiver has already been appointed over part of it.
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8.2
|
Subject to any specific limitations in the terms of appointment, a Receiver shall have the powers conferred on receivers by law or equity in addition to all the
Collateral Agent’s powers including, but not limited to, any one or more of the powers in clause 7 each of which is to be construed as if a reference to the Collateral Agent includes a reference to the Receiver.
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-12-
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Share Charge
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8.3
|
Neither the Collateral Agent nor any of its agents, officers, employees, managers, delegates and advisers shall be responsible for misconduct or negligence on the part
of the Receiver.
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9.
|
Procedure for Private Sale
|
Without prejudice to the generality of clause 7, in the event that the Collateral Agent determines in its discretion to sell the Security
Assets in one or more private sales:
|
|
(a)
|
the Collateral Agent may sell the Security Assets or any part thereof in one or more parcels;
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(b)
|
the Collateral Agent may sell for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral
Agent may deem commercially reasonable;
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(c)
|
the Collateral Agent may in its discretion establish a reserve price for the Security Assets or any part thereof;
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(d)
|
the Collateral Agent shall not be obligated to make any sale regardless of any offer to sell which the Collateral Agent may have made;
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(e)
|
the Collateral Agent may postpone or cancel the sale, modify the terms and conditions of the sale, withdraw Security Assets from the sale at any time, including by
announcement at the time and place fixed for the sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned;
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(f)
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the Chargor unconditionally waives any claims against the Collateral Agent arising by reason of the fact that the price of which any Security Assets may have been sold
at such a private sale was less than the price which might have been attained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Security Assets to more than one offeree provided that the
purchaser purchases the Security Assets for value in an arms-length transaction; and
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-13-
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Share Charge
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(g)
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the Chargor unconditionally agrees that the Collateral Agent may acquire the Security Assets or sell them to an affiliate subject to and in accordance with the prior
authorisation and consent of the Bermuda Monetary Authority in so far as the sale, transfer, grant or option or disposal concern the Shares.
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10.1
|
The Chargor will indemnify and save harmless the Collateral Agent and each agent or attorney appointed under or pursuant to this Charge from and against any and all
expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Collateral Agent or such agent or attorney (the “Liabilities”):
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(a)
|
in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge;
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(b)
|
in the preservation or enforcement of the Collateral Agent’s rights under this Charge or the priority thereof; or
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(c)
|
on the release of any part of the Security Assets from the security created by this Charge,
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except where such Liabilities shall be found by a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Collateral Agent or such agent or attorney, and the Collateral Agent or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this Charge. All amounts
recoverable by the Collateral Agent or such agent or attorney or any of them shall be recoverable on a full indemnity basis.
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10.2
|
If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or
liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made or falls to be satisfied in a
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-14-
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Share Charge
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currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Charge (the “Contractual Currency”) then to the extent
that the amount of such payment actually received by the Collateral Agent when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and
independent obligation, shall indemnify and hold harmless the Collateral Agent against the amount of such shortfall. For the purposes of this clause 10.2 “rate of exchange” means the rate at which the Collateral Agent is able on or about
the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium payable to third parties and other costs of exchange with respect thereto.
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The Chargor
shall pay to the Collateral Agent on demand all costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Collateral Agent or for which the Collateral Agent may become liable in connection
with:
|
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(a)
|
the negotiation, preparation and execution of this Charge;
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(b)
|
the preserving or enforcing of, or attempting to preserve or enforce, any of the rights under this Charge or the priority hereof;
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(c)
|
any variation of, or amendment or supplement to, any of the terms of this Charge; and/or
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(d)
|
any consent or waiver required from the Collateral Agent in relation to this Charge,
|
and in any case referred to in clauses 11(c) and 11(d) regardless of whether the same is actually implemented, completed or granted, as
the case may be.
The
Chargor further agrees that at any time and from time to time, upon the written request of the Collateral Agent, it will promptly and duly execute and deliver any and all such further instruments and documents as the Collateral Agent acting
reasonably may deem necessary, desirable or appropriate for the purpose of obtaining the full benefit of this Charge and of the rights and powers herein granted.
-15-
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Share Charge
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13.
|
Protection of Purchaser
|
No purchaser or other person dealing with the Collateral Agent or any Receiver or with its or his attorneys shall be concerned to enquire
(a) whether any power exercised or purported to be exercised by it, him or them has become exercisable, (b) whether any money remains due on the security hereby created, (c) as to the propriety and regularity of any of its, his or
their actions or (d) as to the application of any money paid to him, it or them. In the absence of
mala fides
on the part of such purchaser or other person, such dealings shall be deemed so far as regards the safety and protection of
such purchaser or other person to be within the powers hereby conferred and to be valid accordingly.
The
Collateral Agent may at its expense at any time employ agents, managers, employees, advisers, attorneys and others on such terms as it sees fit for any of the purposes set out herein.
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15.
|
Liability of Collateral Agent
|
The Collateral Agent and any Receiver shall not be liable for any losses arising in connection with the exercise or purported exercise of any of their rights, powers and discretions in good faith
hereunder.
Under no
circumstances shall the Collateral Agent be deemed to assume any responsibility for or obligation or duty, with respect to any part of all of the Security Assets or this Charge of any nature or kind or any matter or proceeding arising out of or
related thereto but the same shall be at the Chargor’s sole risk at all times. The Collateral Agent shall not be required to take any action of any kind to collect, preserve or protect its or any Chargor’s rights in the Security Assets or
against other parties thereto.
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Share Charge
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17.1
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Any notice, certificate, consent, determination or other communication required or permitted to be given or made under this Charge will be in writing and will be
effectively given and made if (a) delivered personally, (b) sent by prepaid courier service or mail or (c) sent prepaid by fax or other similar means of electronic communication, in each case to the applicable address set out below:
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(i)
|
if to the Chargor, to:
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NCL
International, Ltd.
Milner House
18 Parliament Street
Hamilton HM 12
Attention: Company Secretary
Fax: 441 292-7880
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|
(ii)
|
if to the Collateral Agent, to:
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KfW IPEX-Bank GmbH
Palmengarten Str. 5-9
60325 Frankfurt am Main
Germany
Attention: X5a3 - Risk Management - Collateral
Fax: 49 69 7431 2944
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17.2
|
Any such communication so given or made will be deemed to have been given or made and to have been received on the day of delivery if delivered, or on
the day of faxing or sending by other means of recorded electronic communication, provided that such day in either event is a
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-17-
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Share Charge
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business day and the communication is so delivered, faxed or sent prior to 11.00a.m. (New York time) on such day. Otherwise, such communication will be deemed to have been given and made and to
have been received on the next following business day. Any such communication sent by mail will be deemed to have been given and made and to have been received on the third business day following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended disruption of postal services. Any such communication given or made in any other manner will be deemed to have been given or made and to have been received only upon actual receipt.
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17.3
|
Any party may from time to time change its address for notice in the same manner as set out above.
|
This Charge
shall be binding upon the Chargor and its administrators, successors, transferees and permitted assignees, and enure to the benefit of the Collateral Agent’s executors, administrators, successors, transferees and permitted assignees.
This Charge
may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Charge.
This
Charge shall be governed by and construed in accordance with the laws of Bermuda.
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21.1
|
The parties irrevocably agree that the courts of Bermuda are to have jurisdiction to settle any disputes which may arise out of or in connection with this Charge
and that accordingly any suit, action or proceeding arising out of or in connection with this Charge (in this clause referred to as “Proceedings”) may be brought in such courts.
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-18-
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Share Charge
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21.2
|
Nothing contained in this clause shall limit the right of the Collateral Agent to take Proceedings against the Chargor in any other court of competent jurisdiction, nor
shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
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|
21.3
|
The Chargor irrevocably waives (and irrevocably agrees not to raise) any objection which it may have now or subsequently to the laying of the venue of any Proceedings
in any such court as is referred to in this clause any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in any such court as is referred to in this
clause shall be conclusive and binding upon the Chargor and may be enforced in the courts of any other jurisdiction.
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-19-
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Share Charge
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IN WITNESS WHEREOF
the parties hereto have caused this Charge to be duly executed with the intent
that is shall constitute a deed under Bermuda law the day and year first above written.
ATTESTATIONS
Each attorney executing this Charge states that he or she has not notice of revocation or suspension of his or her power of attorney.
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Signed as a deed by
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on behalf of
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NCL INTERNATIONAL, LTD.
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pursuant to a power of attorney
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___________________________
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dated 12 November 2010
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Attorney-in-fact
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Signed as a deed by
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on behalf of
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KFW IPEX-BANK GMBH
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pursuant to a power of attorney
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___________________________
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dated 10 December 2010
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Attorney-in-fact
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-20-
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Share Charge
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Schedule 1
Form of Undertaking
We,
Breakaway One, Ltd. (the “Company”), hereby irrevocably UNDERTAKE and COVENANT with the KfW IPEX-Bank GmbH (the “Transferee”) to register all transfers of Shares (as defined in the Charge (as defined below)) submitted to the
Company for registration by the Transferee on enforcement of the share charge dated December 2010 between NCL International, Ltd. and the Transferee (the “Charge”) as soon as practical following the submission of such duly completed
transfers accompanied by evidence of any required consent of the Bermuda Monetary Authority to such transfers.
This Undertaking is given
pursuant to clause 1(b)(iii) of the Charge.
EXECUTED AS A DEED
on this
day of December 2010.
Each attorney executing this Form of
Undertaking states that he or she has not notice of revocation or suspension of his or her power of attorney.
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Signed as a deed by
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on behalf of
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Breakaway One, Ltd.
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pursuant to a power of attorney
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___________________________
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dated 12 November 2010
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Attorney-in-fact
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-21-
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Share Charge
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Schedule 2
Form of Irrevocable Proxy
WHEREAS:
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(A)
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NCL International, Ltd. (the “Chargor”) and the KfW IPEX-Bank GmbH (the “Collateral Agent”) have entered into a share charge (the
“Charge”) dated December 2010.
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(B)
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Pursuant to the Charge, the Chargor has granted a charge in favour of the Collateral Agent over all the shares in the capital of Breakaway One, Ltd. (the
“Company”) from time to time registered in the name of the Chargor (the “Shares”).
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(C)
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In furtherance of clause 1(b)(iv) of the Charge, this proxy constitutes an irrevocable proxy and is granted with an interest, namely arising under the Charge.
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NOW THIS DEED witnesses as follows:
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1.
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The Chargor hereby constitutes and appoints the Collateral Agent, acting through its duly authorised officers, to be proxy to vote the Shares on its behalf at any
general meeting of the Company and any adjournments thereof and, on its behalf, to consent to short notice of any such meeting and execute any unanimous written resolution of the shareholders of the Company.
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2.
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The Chargor hereby declares that this proxy shall be irrevocable until such time as it has been released from its Secured Obligations (as defined in the Charge) and
that it constitutes a power coupled with an interest.
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IN WITNESS
whereof the Chargor has executed this irrevocable proxy
as a deed this day of December 2010.
Each attorney executing this Form of Irrevocable Proxy states that he or she has not notice of
revocation or suspension of his or her power of attorney.
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Signed as a deed by
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on behalf of
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NCL INTERNATIONAL, LTD.
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pursuant to a power of attorney
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___________________________
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dated 12 November 2010
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Attorney-in-fact
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-22-
EXHIBIT G
FORM OF
ASSIGNMENT OF EARNINGS
[VESSEL]
IMO Number
[NUMBER]
THIS EARNINGS ASSIGNMENT (the “
Assignment
”), dated
[DATE]
, is given by
BREAKAWAY ONE, LTD.
a Bermuda company with its registered office at Milner House, 18 Parliament
Street, Hamilton HM12, Bermuda (the “
Assignor
”), in favor of KFW IPEX-BANK GMBH, as Collateral Agent (as defined below) under the Credit Agreement referred to below (the “
Assignee
”) on behalf of each Lender Creditor
(as defined below) and each other Secured Creditor (as defined below). Except as otherwise defined herein, capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as so defined.
RECITALS
A. The Assignor is the sole owner of the
[Bahamian]
1
flag vessel
[VESSEL],
IMO Number
[NUMBER] (
the “
Vessel
”
).
B. The Assignor, as borrower has entered into a Credit Agreement, dated as of
[
] (as the same may be amended, supplemented, novated or otherwise modified from time to time, the “
Credit
Agreement
”) with NCL Corporation Ltd., a Bermuda company (the “
Parent
”), the Lenders from time to time party thereto (which Lenders as of the date hereof are Deutsche Schiffsbank Aktiengesellschaft (an affiliate of
Commerzbank Aktiengesellschaft), DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Assignee, as facility agent (in such capacity, the “
Facility Agent
”), collateral agent under the Security
Documents (in such capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as documentation agent and the other parties from time to time party thereto, providing
for the making of Loans to the Assignor in the principal amount of up to the Dollar Equivalent of Five Hundred and Twenty-Nine Million Eight Hundred and Forty-Six Thousand One Hundred Fifty-Four Euros (€529,846,154) (the Lenders, the
Collateral Agent and the other Agents, collectively, the “
Lender Creditors
”).
C. The Assignor and/or the
Parent may at any time and from time to time enter into, and/or, in the case of the Parent, guarantee the obligations of the Assignor under, one or more Interest Rate Protection Agreements or Other Hedging Agreements with one or more Lenders or any
Affiliate thereof (each such Lender or Affiliate, even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender’s or Affiliate’s successors, transferees and assignees,
if any, collectively, the “
Other Creditors
” and, together with the Lender Creditors, the “
Secured Creditors
”).
D. It is a condition to the obligation of the Lenders to advancing funds to the Assignor under the Credit Agreement that the Assignor enters into this Assignment as security for (x) the Credit
Document Obligations and (y) the Other Obligations.
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1
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If Vessel is not flagged in the Bahamas, appropriate adjustments will be made to this document.
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Exhibit G
Page 2
NOW, THEREFORE, the parties hereto agree as follows:
The Assignor agrees to pay to the Secured Creditors all moneys owed to them and to perform all its Credit Document Obligations and Other
Obligations as and when the same shall be due for payment or performance.
Section 1
. As security for the Credit
Document Obligations and the Other Obligations, the Assignor, with full title guarantee, hereby grants, conveys, assigns, transfers, mortgages and pledges absolutely and unconditionally to the Assignee, and unto the Assignee’s successors,
transferees and assignees, all its right, title, interest, claim and demand in and to, and hereby also grants unto the Assignee a security interest in and to (the following clauses (i) through (v), collectively, the “
Earnings
Collateral
”) (i) the earnings of the Vessel, including, but not limited to, all freight, hire and passage moneys, proceeds of off-hire insurance, any other moneys earned and to be earned, due or to become due, or paid or payable to, or
for the account of, the Assignor, of whatsoever nature, arising out of or as a result of the ownership, use, operation or management by the Assignor or its agents of the Vessel, (ii) all moneys and claims for moneys due and to become due to the
Assignor under and all claims for damages arising out of the breach (or payments for variation or termination) of any charter, or contract relating to or under which is employed the Vessel, any and all other present and future charter parties,
contracts of affreightment, and operations of every kind whatsoever of the Vessel, and in and to any and all claims and causes of action for money, loss or damages that may now and hereafter accrue or belong to the Assignor, its successors,
transferees or assignees, arising out of or in any way connected with the present or future ownership, use, operation or management of the Vessel or arising out of or in any way connected with the Vessel, (iii) if the Vessel is employed on
terms whereby any money falling within clauses (i) or (ii) above are pooled or shared with any other Person, that proportion of the net receipts of the pooling or sharing arrangements which is attributable to the Vessel, (iv) all
moneys and claims for moneys due and to become due to the Assignor, and all claims for damages, in respect of the actual or constructive total loss of or requisition of use of or title to the Vessel, (v) all moneys and claims for moneys due in
respect of demurrage or detention, and (vi) any proceeds of any of the foregoing.
Section 2
. Anything herein
contained to the contrary notwithstanding, the Assignee, or its respective successors, transferees and assignees, shall have no obligation or liability under any agreement, including any charter or contract of affreightment by reason of or arising
out of this Assignment, or out of any Charter Assignment (as defined below) made pursuant to Section 5 hereof, and the Assignee, its respective successors, transferees and assignees, shall not be required or obligated in any manner to perform
or fulfill any obligations of the Assignor under or pursuant to any agreement, including any charter or contract of affreightment, or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received by the Assignee
or to present or file any claim, or to take any other action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled hereunder at any time or times.
Section 3
. The Assignor hereby constitutes the Assignee, its successors, transferees and assignees, its true and lawful
attorney-in-fact, irrevocably, with full power, in the name of the Assignor or otherwise, upon the occurrence and continuance of an Event of Default, to ask, require, demand, receive, compound and give acquittance for any and all moneys and claims
for moneys due and to become due, property and rights hereby assigned, to endorse any checks or other instruments or orders in connection therewith and to file any document or to take any action or institute any proceedings which the Assignee and
its successors, transferees and assignees may reasonably deem necessary or advisable in the premises.
Exhibit G
Page 3
Section 4
. The powers and authorities granted to the Assignee and its
successors, transferees or assignees herein have been given for valuable consideration and are hereby declared to be irrevocable.
Section 5
. The Assignor hereby agrees that at any time and from time to time, upon entering into any (a) charter or similar contract that has as of the execution date of such charter or
similar contract a remaining term of 13 months or greater (including any renewal option) and (b) demise or bareboat charter of the Vessel with another member of the NCLC Group, it will promptly and duly execute and deliver to and in favor of
the Assignee at the cost and expense of the Assignor a Charter Assignment in respect of such charter to the Assignee substantially in the form attached as Exhibit A hereto (the “
Charter Assignment
”) and it will promptly execute and
deliver any and all such further instruments and documents as the Assignee, and its successors, transferees or assignees, may reasonably require in order to obtain the full benefits of this Assignment, the Charter Assignment and of the rights and
powers herein and therein granted. The Assignor covenants to use commercially reasonable efforts to obtain the consent of the charterer under said charter to the Charter Assignment pursuant to the terms of the Charter Assignment or in other form and
substance reasonably satisfactory to the Assignee.
Section 6
. The Assignor warrants and represents that it has
not assigned or pledged or otherwise granted a security interest in the rights, title and interest assigned hereunder to anyone other than the Assignee. The Assignor hereby covenants that, without the prior written consent thereto of the Assignee,
so long as this Assignment shall remain in effect, other than in respect of Permitted Liens, it will not assign or pledge or otherwise grant a security interest in the whole or any part of the rights, title and interest hereby assigned to anyone
other than the Assignee, and it will not take or omit to take any action, the taking or omission of which might result in an alteration or impairment of this Assignment, or of any of the rights created by this Assignment.
Section 7
. The Assignor hereby appoints the Assignee as its attorney-in-fact to file any financing statements or continuation
statements under the Uniform Commercial Code or papers of similar purpose or effect in respect of this Assignment.
Section 8
. The Assignor agrees that at any time and from time to time, upon the written request of the Assignee, the Assignor
will promptly and duly execute and deliver any and all further instruments and documents as the Assignee may reasonably deem necessary in obtaining the full benefits of this Assignment.
Section 9
.
THIS ASSIGNMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY
ENGLISH LAW. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF ENGLAND, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO
PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING
Exhibit G
Page 4
WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE ASSIGNOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST
EXTENT POSSIBLE) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH ASSIGNOR IS A
PARTY BROUGHT IN THE COURTS REFERRED TO IN THIS SECTION 9 AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM
.
Section 10
. Any notice, demand or other communication to be given
under or for the purposes of this Assignment shall be made as provided in Section 14.03 of the Credit Agreement.
Section 11
. This Assignment may be executed in any number of counterparts each of which shall be an original, but all such
counterparts shall together constitute one and the same instrument.
Section 12
. Upon the satisfaction in full of
the due and owing Obligations and Other Obligations, the Assignee will reassign all rights and interest of every kind of the Assignor to, in or in connection with the Earnings Collateral in respect of the Vessel assigned to the Assignee hereunder.
Section 13
. This Assignment shall not be amended and/or varied except by agreement in writing signed by the
parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Exhibit G
Page 5
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this instrument on
the day and year first above written.
Signed as a deed and delivered on behalf of
BREAKAWAY ONE, LTD.
, a Bermuda
company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
Exhibit A to
Earnings Assignment
[Form of]
CHARTER ASSIGNMENT
No.
[VESSEL]
IMO Number
[NUMBER]
BREAKAWAY ONE, LTD.
, a Bermuda company (the “
Assignor
”), refers to an Assignment of Earnings, dated
[DATE]
(the “
Earnings Assignment
”), given by the
Assignor in favor of
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Assignee
”), under the Credit Agreement (as defined in the Earnings Assignment), wherein the Assignor agreed to enter into a Charter Assignment in the event
the Assignor entered into any (a) charter or similar contract that has as of the execution date of such charter or similar contract a remaining term of 13 months or greater (including any renewal option) and (b) demise or bareboat charter
of the Vessel with another member of the NCLC Group (as defined in the Credit Agreement).
The Assignor represents that it has
entered into a charter dated
[DATE OF TIME CHARTER PARTY]
between the Assignor and
[CHARTERER]
(the “
Charterer
”), a true and complete copy of which is attached hereto (the “
Charter
”), and agrees that
Section 1 of the Earnings Assignment is hereby amended to add to the description of collateral contained in said Section all of the Assignor’s right, title and interest in and to the Charter, all earnings and freights thereunder, and all
amounts due the Assignor thereunder, and the Assignor, with full title guarantee, does hereby grant, convey, assign, transfer, mortgage and pledge to the Assignee, and to the Assignee’s successors, transferees and assignees, all its right,
title, interest, claim and demand in and to, and hereby does also grant unto the Assignee, a security interest in and to, the Charter and all claims for damages arising out of the breach of and rights to terminate the Charter, and any proceeds of
any of the foregoing.
The Assignor hereby warrants that the Assignor will promptly give notice to the Charterer of the
Earnings Assignment as provided by Section 5 of the Earnings Assignment in the form attached hereto as Annex I and the Assignor will use commercially reasonable efforts to obtain the consent of the Charterer as evidenced by the execution by the
Charterer of the Charterer’s Consent and Agreement in the form attached hereto as Annex II.
The Assignor reconfirms that
the Earnings Assignment including all of the rights and liabilities, covenants and obligations therein remains in full force and effect.
Terms used herein and not otherwise defined herein are used as defined in, or by reference in, the Earnings Assignment.
The Assignor hereby agrees that so long as this Charter Assignment is in effect it will not terminate said Charter, or amend, modify, supplement, or waive any material term of said Charter in a manner
adverse to the Assignee, in each case without first obtaining the written consent of the Assignee therefor. The Assignor hereby agrees to notify the Assignee in writing of any arbitration.
Exhibit A to
Earnings Assignment
Page 2
No notice, request or demand under the Charter, shall be valid as against the Assignee
unless and until a copy thereof is furnished to the Assignee.
THIS ASSIGNMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING
OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY ENGLISH LAW. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF ENGLAND, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL
JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE
ASSIGNOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT TO WHICH SUCH ASSIGNOR IS A PARTY BROUGHT IN THE COURTS REFERRED TO IN THIS SECTION 9 AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Any notice, demand or other
communication to be given under or for the purposes of this Assignment shall be made as provided in the Earnings Assignment.
This Assignment may be executed in any number of counterparts each of which shall be an original, but all such counterparts shall
together constitute one and the same instrument.
Upon the satisfaction in full of the due and owing Obligations and Other
Obligations (under and as defined in the Credit Agreement referenced in the Earnings Assignment), the Assignee will reassign all rights and interest of every kind of the Assignor to, in or in connection with the Earnings Collateral in respect of the
Vessel assigned to the Assignee hereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Charter Assignment
No.
to be duly executed [and delivered as a deed] this
day of
.
Signed as a deed and delivered on behalf of
BREAKAWAY ONE, LTD.
, a Bermuda company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory
is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
Annex I to
Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
NOTICE OF ASSIGNMENT OF CHARTER
No.
[VESSEL]
IMO Number
[NUMBER]
The undersigned,
BREAKAWAY ONE, LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, hereby gives you notice (this “
Notice
”) that by a Charter
Assignment dated
[DATE]
entered into by us in favor of KFW IPEX-BANK GMBH, as collateral agent (hereinafter called the “
Assignee
”), and an Earnings Assignment dated [DATE] (as the same may be amended, supplemented, novated or
otherwise modified from time to time), the Owner has assigned all its right, title, interest claim and demand in and to, the time charter-party [DATE OF TIME CHARTER PARTY] between the Owner and you (the “
Charter
”), including, but
not limited to, all earnings and freight thereunder, and all amounts due to the Owner thereunder, and further, the Owner has granted a security interest in and to the Charter and all claims for damages arising out of the breach of and rights to
terminate the Charter, and any proceeds of any of the foregoing.
The Owner remains liable to perform all its duties and
obligations under the Charter and the Assignee is under no obligation of any kind under the Charter nor under any liability whatsoever in the event of any failure by the Owner to perform its obligations.
Dated:
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BREAKAWAY ONE, LTD.,
as Owner
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By:
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Name:
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Title:
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Annex II to
Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
CHARTERER’S ACKNOWLEDGMENT, CONSENT AND AGREEMENT
No. __
[VESSEL]
IMO Number
[NUMBER]
The undersigned, charterer of the
[COUNTRY]
flag vessel
[VESSEL]
pursuant to a time charter-party dated
[DATE OF TIME CHARTER PARTY]
between BREAKAWAY ONE, LTD., as owner (the
“Assignor”) and the undersigned (the “
Charter
”), does hereby acknowledge receipt of a notice of the assignment by the Assignor of all the Assignor’s right, title and interest in and to the Charter to
KFW IPEX-BANK
GMBH
, as Collateral Agent (the “
Assignee
”), pursuant to a Charter Assignment dated
[DATE]
and an Earnings Assignment dated
[DATE]
(as the same may be amended, supplemented, novated or otherwise modified from time
to time, the “
Assignment
”), consents to such assignment, and agrees that, after being notified by the Assignee that an Event of Default (as defined in the Credit Agreement) exists and is continuing, it will pay all moneys due and to
become due under the Charter, without setoff or deduction for any claim not arising under the Charter, and notwithstanding the existence of a default or event of default by the Assignor under the Charter, direct to the Assignee or such account
specified by the Assignee at such address as the Assignee shall request the undersigned in writing until the Event of Default no longer exists.
The undersigned agrees that it shall look solely to the Assignor for performance of the Charter and that the Assignee shall have no obligation or liability under or pursuant to the Charter arising out of
the Assignment, nor shall the Assignee be required or obligated in any manner to perform or fulfill any obligations of the Assignor under or pursuant to the Charter. Notwithstanding the foregoing, if in the sole opinion of the Assignee an Event of
Default under the Credit Agreement (as defined in or by reference in the Assignment) shall have occurred and be continuing, the undersigned agrees that the Assignee shall have the right, but not the obligation, to perform all of the Assignor’s
obligations under the Charter as though named therein as owner.
The undersigned agrees that it shall not seek the recovery of
any payment actually made by it to the Assignee pursuant to this Charterer’s Consent and Agreement once such payment has been made. This provision shall not be construed to relieve the Assignor of any liability to the Charterer.
The undersigned hereby waives the right to assert against the Assignee, as assignee of the Assignor, any claim, defense, counterclaim or
setoff that it could assert against the Assignor under the Charter.
The undersigned agrees to execute and deliver, or cause
to be executed and delivered, upon the written request of the Assignee any and all such further instruments and documents as the Assignee may deem desirable for the purpose of obtaining the full benefits of the Assignment and of the rights and power
herein granted.
Annex II to
Exhibit A to
EARNINGS ASSIGNMENT
Page 2
The undersigned hereby agrees that so long as the Assignment is in effect it will not
amend, modify, supplement, or alter any material term of the Charter in a manner adverse to the Assignee, in each case without first obtaining the written consent of the Assignee therefor.
The undersigned hereby confirms that the Charter is a legal, valid and binding obligation, enforceable against it in accordance with its
terms, and that neither it nor, to the best of its knowledge, the Assignor is in default under its terms.
We also confirm
that we have received no notice of any previous assignment of, or other third party right affecting, all or any part of the Earnings and we undertake that, if required to do so in writing by the Assignee after the occurrence of an Event of Default,
we will immediately deliver up possession of the Vessel to or to the order of the Assignee (or, if the Vessel is not then in port and free of cargo, as soon as she has completed the voyage on which she is then engaged and discharged any cargo then
on board) free of the Charter but without prejudice to any rights which we may have against the Assignor under or pursuant to the Charter.
Dated:
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[CHARTERER],
as
Charterer
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By:
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Name:
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Title:
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EXHIBIT H
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF
ASSIGNMENT OF INSURANCES
[VESSEL NAME]
IMO Number
[NUMBER]
[DATE]
BREAKAWAY ONE, LTD.,
a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Assignor
”), as sole
owner of the
[Bahamian]
1
flag vessel
[VESSEL
NAME]
, IMO Number
[NUMBER]
(the “
Vessel
”) in consideration of the Secured Creditors referred to below entering into the transactions described in the Credit Agreement (as defined below), as security for the Obligations
and for one Euro (€1) lawful money of the European Union, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, has assigned, transferred and set over, and by this instrument and with full
title guarantee does assign, transfer and set over absolutely and unconditionally to
KFW
IPEX-BANK GMBH
, as Collateral Agent (as defined below) (hereinafter called the “
Assignee
”) on behalf of each Lender Creditor (as
defined below) and each other Secured Creditor (as defined below), and to the Assignee’s successors, transferees and assignees, as such to it and its successors’, transferees’ and assignees’ own proper use and benefit, and does
hereby grant to the Assignee a security interest in, all right, title and interest of the Assignor under, in and to (i) all insurances in respect of the Vessel, whether now or hereafter to be effected, and all renewals of or replacements for the
same, (ii) all claims, returns of premium and other moneys and claims for moneys due and to become due under said insurance or in respect of said insurance, and (iii) all other rights of the Assignor under or in respect of said insurance, including
proceeds (the above clauses (i), (ii) and (iii) collectively called the “
Insurance Collateral
”).
Terms
used herein and not otherwise defined herein are used as defined in the Credit Agreement, dated as of [
] (as the same may be amended, supplemented, novated or otherwise
modified from time to time, the “
Credit Agreement
”) among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), the Assignor, as borrower, the Lenders from time to time party thereto (which Lenders as of the date
hereof are Deutsche Schiffsbank Aktiengesellschaft (an affiliate of Commerzbank Aktiengesellschaft), DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Assignee, as facility agent (in such capacity, the
“
Facility Agent
”), as collateral agent under the Security Documents (in such capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as
documentation agent and the other parties from time to time party thereto, providing for the making of Loans to the Assignor in the principal amount of up to the Dollar Equivalent of Five Hundred and Twenty-Nine Million Eight Hundred and Forty-Six
Thousand One Hundred and Fifty-Four Euros (€529,846,154) (the Lenders, the Collateral Agent and the other Agents, collectively, the “
Lender Creditors
”).
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If Vessel is not flagged in the Bahamas, appropriate adjustments will be made to this document.
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Exhibit H
Page 2
The Assignor is a wholly-owned subsidiary of the Parent. The Parent and/or the Assignor
may at any time and from time to time enter into, and/or, in the case of Parent, guarantee the obligations of the Assignor under, one or more Interest Rate Protection Agreements or Other Hedging Agreements with one or more Lenders or any Affiliate
thereof (each such Lender or Affiliate, even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender’s or Affiliate’s successors, transferees and assignees, if any,
collectively, the “
Other Creditors
” and, together with the Lender Creditors, the “
Secured Creditors
”).
This Assignment of Insurances (the “
Assignment
”) is given as security for all amounts due and to become due to the Secured Creditors under the Credit Documents, Interest Rate Protection
Agreements and Other Hedging Agreements.
The Assignor agrees to pay to the Secured Creditors all moneys owed to them and to
perform all its Credit Document Obligations and Other Obligations as and when the same shall be due for payment or performance.
It is expressly agreed that anything herein contained to the contrary notwithstanding, the Assignor shall remain liable under said
insurances to perform all of the obligations assumed by it thereunder, and the Assignee shall have no obligation or liability under said insurances by reason of or arising out of this instrument of assignment nor shall the Assignee be required or
obligated in any manner to perform or fulfill any obligations of the Assignor under or pursuant to said insurances or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received by it or to present or file any
claim, or to take any other action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled hereunder at any time or times.
The Assignor does hereby constitute the Assignee, its successors, transferees and assignees, the Assignor’s true and lawful
attorney-in-fact, irrevocably, with full power (in the name of such Assignor or otherwise), upon the occurrence and continuance of an Event of Default or an Event of Loss to ask, require, demand, receive, compound and give acquittance for any and
all moneys and claims for moneys due and to become due under or arising out of said insurances, to endorse any checks or other instruments or orders in connection therewith and to file any claims or to take any action or institute any proceedings
which the Assignee may deem to be necessary or advisable in the premises.
The Assignor hereby covenants and agrees to procure
that notice of this Assignment shall be duly given to all underwriters, substantially in the form hereto attached as Exhibit A, and that where the consent of any underwriter is required pursuant to any of the insurances assigned hereby that it shall
use commercially reasonable efforts to obtain such consent and evidence thereof shall be given to the Assignee, or, in the alternative, that in the case of protection and indemnity coverage the Assignee shall use commercially reasonable efforts to
obtain a letter of undertaking by the underwriters, and that there shall be duly endorsed upon all slips, cover notes, policies, certificates of entry or other instruments issued or to be issued in connection with the insurances assigned hereby such
clauses as to loss payees as the Assignee may require or approve. In all cases, unless otherwise agreed in writing by the Assignee, such slips, cover notes, notices, certificates of entry or other instruments shall provide that there will be no
recourse against the Assignee for payment of premiums, calls or assessments.
Exhibit H
Page 3
The Assignor agrees that at any time and from time to time, upon the written request of
the Assignee, the Assignor will promptly and duly execute and deliver any and all such further instruments and documents as the Assignee may reasonably deem desirable in obtaining the full benefits of this Assignment and of the rights and powers
herein granted.
The Assignor does hereby warrant and represent that it has not assigned or pledged, and hereby covenants
that, without the prior written consent thereto of the Assignee, so long as this instrument of assignment shall remain in effect, other than in respect of Permitted Liens, it will not assign or pledge the whole or any part of the right, title and
interest hereby assigned to anyone other than the Assignee, its successors, transferees and assignees, and it will not take or omit to take any action, the taking or omission of which might result in an alteration or impairment of said insurances,
of this Assignment or of any of the rights created by said insurances or this Assignment.
All notices or other communications
which are required to be made to the Assignee hereunder shall be made by postage prepaid letter or telecopy confirmed by postage prepaid letter to:
KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax: +49 69 7431 4466 / 2944
Attn: Mr Stephan Pueschel /
Mr Christian Schweiger
or at such other address as may have been furnished in writing by the Assignee.
Any payments made pursuant to the terms hereof shall be made to such account as may, from time to time, be designated by the Assignee or as the Assignee may otherwise instruct.
THIS ASSIGNMENT AND THE NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY THE LAW OF ENGLAND. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE ENGLISH COURTS, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES
NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE ASSIGNOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT
IS A PARTY BROUGHT IN THE COURTS REFERRED TO
Exhibit H
Page 4
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Assignment shall not be amended and/or varied except by
agreement in writing signed by the parties hereto.
This Assignment may be executed in any number of counterparts each of
which shall be an original, but such counterparts shall together constitute one and the same instrument.
[REMAINDER OF THIS
PAGE INTENTIONALLY LEFT BLANK]
Exhibit H
Page 5
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this instrument on
the day and year first above written.
Signed as a deed and delivered on behalf of
BREAKAWAY ONE, LTD.
, a Bermuda
company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
EXHIBIT A
to
Insurance Assignment
NOTICE OF ASSIGNMENT
The undersigned,
BREAKAWAY ONE, LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, hereby
gives you notice (this “
Notice
”) that by an Insurance Assignment dated
[DATE]
entered into by us in favor of KFW IPEX-BANK GMBH, as collateral agent (hereinafter called the “
Assignee
”), there has been
assigned by us to the Assignee all insurances effected and to be effected in respect thereof including the insurances constituted by the policy whereon this Notice is endorsed. This Notice and the applicable loss payable clauses in the form hereto
attached as Annex I are to be endorsed on all policies and certificates of entry evidencing such insurance.
Dated:
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BREAKAWAY ONE, LTD.,
as Owner
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By:
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Name:
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Title:
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ANNEX I
to Notice of Insurance Assignment
FORM OF LOSS PAYABLE CLAUSES
Hull and War Risks
Loss, if any, payable to
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Mortgagee
”), for distribution by the Mortgagee to itself as Collateral Agent and to
BREAKAWAY ONE,
LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, as their respective interests may appear, or order, except that, unless underwriters have been otherwise instructed by notice in writing from the
Mortgagee following the occurrence and continuation of an Event of Default (as defined in the Credit Agreement, dated as of
[DATE]
, among the Owner, NCL Corporation Ltd., as parent, the Mortgagee, the lenders from time to time party thereto
and the other parties from time to time party thereto), in the case of any loss involving any damage to the Vessel or liability of the Vessel, the underwriters may pay directly for the repair, salvage, liability or other charges involved or, if the
Owner shall have first fully repaired the damage and paid the cost thereof, or discharged the liability or paid all of the salvage or other charges, then the underwriters may pay the Owner as reimbursements therefore;
provided
,
however
, that if such damage involves a loss in excess of [*] or its equivalent the underwriters shall not make such payment without first obtaining the written consent thereto of the Mortgagee.
In the event of an actual or constructive total loss or a compromise or arranged total loss or requisition of title, all insurance
payments therefor shall be paid to the Mortgagee, for distribution by it in accordance with the terms of the Deed of Covenants, dated as of
[DATE]
entered into by the Owner in favor of the Mortgagee.
Protection and Indemnity
Loss, if any, payable to
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Mortgagee
”), for distribution by the Mortgagee to itself as Collateral Agent and
BREAKAWAY ONE LTD.
,
Owner, as their respective interests may appear, or order, except that, unless and until the underwriters have been otherwise instructed by notice in writing from the Mortgagee following the occurrence and continuation of a Default, an Event of
Default or an Event of Loss (in each case as defined in the Credit Agreement), any loss may be paid directly to the person to whom the liability covered by this insurance has been incurred, or to the Owner to reimburse it for any loss, damage or
expenses incurred by it and covered by this insurance.
EXHIBIT I
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF
DEED OF
COVENANTS
ON [BAHAMIAN]
1
FLAG VESSEL
[VESSEL]
OFFICIAL NO. [OFFICIAL NUMBER]
executed by
BREAKAWAY ONE, LTD.,
as Owner
in favor of
KFW IPEX-BANK GMBH,
as Collateral Agent and Mortgagee
[DATE]
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If Vessel is not flagged in the Bahamas, appropriate changes will be made to this document.
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Table of Contents
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Page
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1.
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Definitions and Construction
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2
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2.
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Owner’s Covenant to Pay
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6
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3.
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Mortgage
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7
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4.
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Owner’s Covenants
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8
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5.
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Owner’s Covenants as to Insurance
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9
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6.
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Owner’s Covenants as to Operation and Maintenance
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13
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7.
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Expenses
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17
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8.
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Protection and Maintenance of Security
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17
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9.
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Enforcement of Rights
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18
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10.
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Application of Moneys
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19
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11.
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Receivers
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20
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12.
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No Waiver
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20
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13.
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Power of Delegation
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20
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14.
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Power of Attorney
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21
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15.
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Further Assurance
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21
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16.
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Assignment
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21
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17.
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Waiver of Rights as Surety
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21
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18.
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No Obligations Imposed on Mortgagee
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22
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19.
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Law of Property Act 1925 not applicable
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22
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20.
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No Liability of Mortgagee
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22
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21.
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No Requirement to Commence Proceedings
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23
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22.
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No Restriction on Other Rights
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23
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23.
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Exercise of Other Rights
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23
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(i)
Table of Contents
(continued)
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Page
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24.
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Settlement or Discharge Conditional
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23
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25.
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Severability of Provisions
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23
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26.
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Notices
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23
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27.
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GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
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24
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(ii)
EXHIBIT I
DEED OF COVENANTS
DEED OF COVENANTS (as amended, modified, restated
and/or supplemented from time to time, this “
Deed
”), dated as of [
], between BREAKAWAY ONE, LTD. a Bermuda company having its registered office as of the
date hereof at [
] (the “
Owner
”) and KFW IPEX-BANK GMBH, as Collateral Agent and Security Trustee for and on behalf of the Secured Creditors pursuant to
the Security Trust Deed (the “
Mortgagee
”, which expression shall include its successors, transferees and permitted assignees).
WHEREAS:
(A) The Owner is the absolute and unencumbered owner of all the shares
of and in the motor vessel “[
]” registered under the [Bahamian flag at the port of Nassau] with Official Number
[
].
(B) NCL Corporation Ltd., a Bermuda
corporation (the “
Parent
”), the Owner, as borrower, each Lender from time to time party thereto (which Lenders as of the date hereof are Deutsche Schiffsbank Aktiengesellschaft (an affiliate of Commerzbank Aktiengesellschaft), DnB
NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Mortgagee, as facility agent (in such capacity, the “
Facility Agent
”), as collateral agent and security trustee under the Security Documents (in such
capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as documentation agent and the other parties from time to time party thereto, have entered into a Credit
Agreement, dated as of [
], 2010, (as the same may be amended, supplemented, refinanced, replaced, novated or otherwise modified from time to time, the “
Credit
Agreement
”), providing for the making of Loans to the Owner in the principal amount of up to the Dollar Equivalent of Five Hundred Twenty-Nine Million Eight Hundred and Forty-Six Thousand One Hundred and Fifty-Four Euros
(€529,846,154) (the Lenders, the Collateral Agent and the other Agents, in their capacity as such, collectively, the “
Lender Creditors
”).
(C) The Parent and/or the Owner may at any time and from time to time enter into one or more Secured Hedging Agreements (as hereinafter defined) with one or more Other Creditors (as defined herein). The
estimated aggregate notional amount of the liabilities of the Parent and/or Owner under the Secured Hedging Agreements entered into with respect to the Loans (as defined in the Credit Agreement) (and/or the Commitments (as defined in the Credit
Agreement)) is a principal amount of up to the Dollar Equivalent of Fifty-Eight Million Two Hundred and Eighty-Three Thousand Seventy-Six Euro and Ninety-Four cents (€58,283,076.94).
(D) The Parent has guaranteed the Credit Document Obligations of the Owner under the Credit Agreement pursuant to Section 15 of the
Credit Agreement (the “
Parent Guarantee
”).
(E) There has contemporaneously with the execution of this Deed
been executed by the Owner in favor of the Mortgagee a first priority Bahamian statutory mortgage over all the shares in the said vessel (the “
Mortgage
”).
(F) It is intended that the Mortgage and this Deed shall together stand as security for the payment of the Secured Obligations (as defined below) and the performance and observance of and compliance with
the covenants, terms and conditions contained in any of the Secured Debt Documents (as hereinafter defined).
Exhibit I
Page 2
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED as follows:
1.
Definitions and Construction
.
Section 1.1 In this Deed unless the context otherwise requires any term defined in the preamble or recitals hereto has the meaning ascribed to it therein; in addition, terms and expressions not defined
herein but whose meanings are defined in the Credit Agreement shall unless the context otherwise requires have the meanings set out therein and:
“
Collateral
” means all property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Share Charge Collateral, all Earnings and Insurance Collateral, the Construction Risk Insurance, the Vessel, the Refund Guarantees, the Construction Contract and all cash and Cash Equivalents at any time delivered
as collateral thereunder or as collateral required under the Credit Agreement.
“
Compulsory Acquisition
”
means requisition for title or other compulsory acquisition of the Vessel including its capture, seizure, confiscation or expropriation but excluding any requisition for hire.
“
Compulsory Acquisition Compensation
” means all moneys or other compensation whatsoever payable by reason of the Compulsory Acquisition of the Vessel other than by requisition for hire.
“
Credit Agreement
” has the meaning provided in the Recitals hereto.
“
Credit Document Obligations
” means, except to the extent consisting of obligations, liabilities or indebtedness with
respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest, fees and indemnities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of the Owner or any other Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding)) of each Credit Party to the Lender Creditors
(
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned obligations, liabilities and indebtedness shall arise only for such Lenders (in such capacity) in respect of Loans and/or Commitments), whether now existing
or hereafter incurred under, arising out of, or in connection with the Credit Agreement and the other Credit Documents to which such Credit Party is a party (including, in the case of each Credit Party that is a Guarantor, all such obligations,
liabilities and indebtedness of such Credit Party under the Parent Guarantee) and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained in the Credit Documents.
“
Credit Party
” means the Owner, the Parent and each Subsidiary of the Parent that owns a direct interest in the Owner.
Exhibit I
Page 3
“
Default Rate
” means the rate of interest set out in Section 2.06
of the Credit Agreement.
“
Document of Compliance
” means a document issued to a vessel operator as evidence
of its compliance with the requirements of the ISM Code.
“
Earnings
” means (i) the earnings of the
Vessel, including, but not limited to, all freight, hire and passage moneys, proceeds of off-hire insurance, any other moneys earned and to be earned, due or to become due, or paid or payable to, or for the account of, the Owner, of whatsoever
nature, arising out of or as a result of the ownership, use, operation or management by the Owner or its agents of the Vessel, (ii) all moneys and claims for moneys due and to become due to the Owner under and all claims for damages arising out
of the breach (or payments for variation or termination) of any charter, or contract relating to or under which is employed the Vessel, any and all other present and future charter parties, contracts of affreightment, and operations of every kind
whatsoever of the Vessel, and in and to any and all claims and causes of action for money, loss or damages that may now and hereafter accrue or belong to the Owner, its successors, transferees or assignees, arising out of or in any way connected
with the present or future ownership, use, operation or management of the Vessel or arising out of or in any way connected with the Vessel, (iii) if the Vessel is employed on terms whereby any money falling within clauses (i) or
(ii) above are pooled or shared with any other Person, that proportion of the net receipts of the pooling or sharing arrangements which is attributable to the Vessel, (iv) all moneys and claims for moneys due and to become due to the
Owner, and all claims for damages, in respect of the actual or constructive total loss of or requisition of use of or title to the Vessel, (v) all moneys and claims for moneys due in respect of demurrage or detention, and (vi) any proceeds
of any of the foregoing.
“
Event of Default
” means an “Event of Default’ under and as defined in
the Credit Agreement.
“
Insurances
” means all policies and contracts of insurance and entries of the Vessel
in a protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include
all Compulsory Acquisition Compensation.
“
Interest Rate Protection Agreement
” means any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Lead Arranger or its
Affiliate, and the Parent and/or the Owner in relation to the Credit Document Obligations of the Owner under the Credit Agreement.
“
ISM Code
” means in relation to its application to the Owner and the Vessel and its operation:
(a) ‘The International Management Code for the Safe Operation of Ships and for Pollution Prevention’, currently known or referred to as the ‘ISM Code’, adopted by the Assembly of the
International Maritime Organization by Resolution A.741(18) on 4 November 1993 and incorporated on 19 May 1994 into Chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and
Exhibit I
Page 4
(b) all further applicable resolutions, circulars, codes, guidelines,
regulations and recommendations which are now or in the future issued by or on behalf of the International Maritime Organization or any other entity with responsibility for implementing the ISM Code, including without limitation, the
‘Guidelines on implementation or administering of the International Safety Management (ISM) Code by Administrations’ produced by the International Maritime Organization pursuant to Resolution A.788(19) adopted on 25 November 1995,
as the same may be amended, supplemented or replaced from time to time.
“
ISM Responsible Person
” means the person from time to time so designated by the Owner for the purposes of the ISM Code.
“
ISM SMS
” means the safety management system which is required to be developed, implemented and maintained
under the ISM Code.
“
ISPS Code
” means the International Ship and Port Facility Security Code constituted
pursuant to resolution A.924(22) of the International Maritime Organisation (“
IMO
”) adopted by a Diplomatic conference of the IMO on Maritime Security on 13 December 2002 and now set out in Chapter XI-2 of the Safety of Life at
Sea Convention (SOLAS) 1974 (as amended) to take effect on July 1, 2004.
“
ISSC
” means an international
ship security certificate issued for a vessel under the ISPS Code.
“
Lender Creditors
” has the meaning
provided in the Recitals hereto.
“
Mortgage
” has the meaning provided in the Recitals hereto.
“
Mortgaged Premises
” includes:
(a) the Vessel; and
(b) the Compulsory Acquisition Compensation.
“
person
” includes any body of persons.
“
Other Creditors
” means any Lender or any Affiliate thereof and their successors, transferees and assignees if any (even if such Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason), together with such Lender’s or Affiliate’s successors, transferees and assignees, with which the Parent and/or the Owner enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time
to time.
“
Other Hedging Agreement
” means any foreign exchange contracts, currency swap agreements, commodity
agreements or other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliates, and the Parent and/or the Owner in relation to the Credit Document Obligations of the Owner under the
Credit Agreement and designed to protect against the fluctuations in currency or commodity values.
Exhibit I
Page 5
“
Process Agent
” means EC3 Services Limited of 51 Eastcheap, London,
England, EC3M 1JP.
“
Receiver
” means any administrative receiver, a receiver and manager of any other
receiver (whether appointed pursuant to this Deed, pursuant to any statute, by a court or otherwise) of all or any part of the Vessel.
“
Safety Management Certificate
” means a document issued to a vessel as evidence that the vessel operator and its shipboard management operate in accordance with an approved Safety
Management System.
“
Safety Management System
” means a structured and documented system enabling the
personnel of a vessel operator to implement effectively the safety and environmental protection policy of such vessel operator.
“
Secured Creditors
” means, collectively, (i) the Lender Creditors and (ii) the Other Creditors.
“
Secured Debt Document
” means the Credit Agreement and the other Credit Documents (as defined in the Credit Agreement).
“
Secured Hedging Agreements
” means (i) any Interest Rate Protection Agreement and (ii) any Other
Hedging Agreements.
“
Secured Obligations
” means (i) the Credit Document Obligations, (ii) the
Other Obligations, (iii) any and all sums advanced by the Collateral Agent in order to preserve the Collateral or preserve its security interest in the Collateral, (iv) in the event of any proceeding for the collection or enforcement of
any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after an Event of Default shall have occurred and be continuing, the reasonable expenses of retaking, holding, preparing for sale
or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs, and (v) all amounts paid by any
Secured Creditor as to which such Secured Creditor has the right to reimbursement under the Security Documents.
“
Security Period
” means the period beginning on the date hereof and ending on the date on which all amounts outstanding
under the Secured Debt Documents are finally paid and repaid in full, all letters of credit issued thereunder are terminated and all commitments thereunder are terminated.
“
Security Trust Deed
” means the Security Trust Deed executed by,
inter alia
, the Owner, the Parent, the Collateral Agent, the Original Secured Creditors (as defined therein)
and the Original ECF Hedging Creditors (as defined therein), and shall be substantially in the form of Exhibit P or otherwise reasonably acceptable to the Facility Agent.
“
Total Loss
” means any actual or constructive or arranged or agreed or compromised total loss or Compulsory Acquisition of the Vessel (excluding any requisition for hire).
“
Vessel
” means the motor vessel more particularly described in Recital (A) and includes any share or interest
therein and its engines, machinery, boats, tackle, outfit, spare gear, fuel, consumable or other stores, belongings and appurtenances whether on board or ashore and whether now owned or hereafter acquired.
Exhibit I
Page 6
Section 1.2 In
Section 5.1
:
“
excess risks
” means the proportion of claims for general average and salvage charges and under the ordinary running
down clause not recoverable in consequence of the value at which a vessel is assessed for the purpose of such claims exceeding its insured value;
“
protection and indemnity risks
” means the usual risks covered by an English protection and indemnity association including without limitation pollution risks (whether relating to oil or
otherwise howsoever) and the proportion not recoverable in case of collision under the ordinary running down clause; and
“
war risks
” includes the risks of mines and all risks excluded from the standard form of English marine policy by the
free of capture and seizure clause.
Section 1.3 In the Mortgage, (i) references to “
interest
” mean
interest covenanted to be paid in accordance with
Sections 2.1
,
7
,
8
and
9
; (ii) references to “
principal
” mean all other sums of money for the time being comprised in the Secured Obligations;
and (iii) the expression “
all sums for the time being due on this security
” means the whole of the Secured Obligations.
Section 1.4
In this Deed
:
1.4.1 words denoting the plural number include
the singular and vice versa;
1.4.2 references to Recitals and Sections are references to recitals and sections of this Deed;
1.4.3 references to this Deed include the Recitals;
1.4.4 the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
1.4.5 references to any document (including, without limitation, to all or any of the Secured Debt Documents) are, unless the context
otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
1.4.6
references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re- enacted.
2.
Owner’s Covenant to Pay
.
Section 2.1 Pursuant to the Secured Debt
Documents and in consideration of the premises, the Owner covenants with the Mortgagee:
2.1.1 to satisfy the Secured
Obligations at the times and in the manner specified in the relevant Secured Debt Documents;
Exhibit I
Page 7
2.1.2 to pay interest on the Secured Obligations at the rate, at the times and in the
manner specified in the Secured Debt Documents, as applicable;
2.1.3 to pay interest at the Default Rate on any sum or sums
payable under this Deed which is not paid on the due date;
2.1.4 to pay each and every other sum of money that may be or
become owing to the Secured Creditors under the terms of the Secured Debt Documents or any of them at the times and in the manner specified therein; and
2.1.5 to pay and discharge when due and payable, from time to time, all taxes, assessments, governmental charges, fines and penalties lawfully imposed on the Vessel or any income therefrom.
Section 2.2 The holder of the relevant Secured Obligations and the Owner may agree in writing to vary the date or dates for repayment of
principal or interest in respect of such Secured Obligations and/or vary the terms of the relevant Secured Debt Documents without reference to the Owner and without adversely affecting or diminishing the security conferred by the Secured Debt
Documents executed by the Owner.
3.
Mortgage
.
Section 3.1 By way of security for the payment of the Secured Obligations and the performance and observance of and compliance with the
covenants, terms and conditions contained in any of the Secured Debt Documents, the Owner with full title guarantee hereby mortgages and charges to and in favor of the Mortgagee all its interest, present and future, in the Mortgaged Premises (which,
the Owner hereby warrants to be free at the date hereof from any other charge or encumbrance whatsoever).
Section 3.2 It is
declared and agreed that this Deed and the Mortgage shall be held by the Mortgagee as a continuing security for the payment of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or
satisfaction of any part of the amount hereby and thereby secured and that the security so created shall be in addition to and shall not in any way be prejudiced or affected by any collateral or other security now or hereafter held by the Mortgagee
and/or the Secured Creditors for all or any part of the moneys hereby and thereby secured and that every power and remedy given to the Mortgagee hereunder shall be an addition to and not a limitation of any and every other power or remedy vested in
the Mortgagee and/or the Secured Creditors under any of the other Secured Debt Documents and that all the powers so vested in the Mortgagee and/or the Secured Creditors may be exercised from time to time and as often as the Secured Creditors may
deem expedient.
Section 3.3 The Owner will cause the Mortgage to be duly registered in the New York office of the Bahamas
Maritime Authority and will otherwise comply with and satisfy all of the provisions of applicable laws of the Commonwealth of the Bahamas in order to establish and maintain the Mortgage as a first priority mortgage thereunder upon the Vessel and
upon all renewals, replacements and improvements made in or to the same for the amount of the indebtedness hereby secured.
Exhibit I
Page 8
4.
Owner’s Covenants
.
Section 4.1 The Owner covenants and agrees with the Mortgagee as follows:
4.1.1 it is and will remain a company duly constituted, validly existing and in good standing under the laws of Bermuda;
4.1.2 it lawfully owns and is lawfully possessed of all the shares in the Vessel free from any lien or encumbrance whatsoever except for
this Deed, the Mortgage and any Permitted Lien and will warrant and defend the title and possession thereto and to every part thereof for the benefit of the Mortgagee against the claims and demands of all other persons whomsoever;
4.1.3 it will perform, observe and comply with the covenants, terms and obligations and conditions on its part to be performed, observed
and complied with contained or implied in the Secured Debt Documents;
4.1.4 it will place, and at all times and places will
retain a properly certified copy of this Deed and the Mortgage on board the Vessel with her papers and will cause such certified copy and the Vessel’s marine document to be exhibited to any and all person having business therewith which might
give rise to any lien thereon other than liens for crew’s wages and salvage, and to any representative of the Mortgagee;
The Owner will place and keep prominently displayed in the chart room and in the Master’s cabin on the Vessel a framed printed
notice in plain type reading as follows:
NOTICE OF MORTGAGE
THIS VESSEL IS OWNED BY BREAKAWAY ONE LTD., AND IS SUBJECT TO A FIRST PRIORITY MORTGAGE IN FAVOR OF KFW IPEX-BANK GMBH, AS COLLATERAL
AGENT/MORTGAGEE UNDER AUTHORITY OF THE MERCHANT SHIPPING ACT OF THE STATUTE LAWS OF THE BAHAMAS, CHAPTER 268, AS AMENDED. UNDER THE TERMS OF SAID MORTGAGE, NEITHER THE OWNER, ANY CHARTERER, THE MASTER OF THE VESSEL, NOR ANY OTHER PERSON HAS ANY
RIGHT, POWER OR AUTHORITY TO CREATE, INCUR OR PERMIT TO BE PLACED OR IMPOSED UPON THE VESSEL, ANY ENCUMBRANCES WHATSOEVER OR ANY OTHER LIEN WHATSOEVER OTHER THAN FOR CREW’S WAGES AND SALVAGE.
4.1.5 it will do and permit to be done each and every act or thing whatsoever which the Mortgagee may require to be done for the purpose
of enforcing the Mortgagee’s rights hereunder and allow the Mortgagee to use the Owner’s name as may be required for that purpose.
4.1.6 it will not create or permit to subsist any Lien on the whole or any part of the Vessel except for Liens created with the prior consent of the Mortgagee or Permitted Liens; and
4.1.7 if a libel, arrest, complaint or similar process be filed against the Vessel or the Vessel be otherwise attached, levied upon or
taken into custody or detained by virtue of any proceeding in any court or tribunal or by any Government, or other authority, the Owner will
Exhibit I
Page 9
promptly notify the Mortgagee thereof by telex, or telefax confirmed by letter, at the address, as specified in this Deed, and within [*] days will cause the Vessel to be released and all liens
thereon other than the Mortgage to be discharged, will cause a certificate of discharge to be recorded in the case of any recording of a notice of claim of lien, and will promptly notify the Mortgagee thereof in the manner aforesaid. The Owner will
notify the Mortgagee within [*] hours of any average or salvage incurred by the Vessel.
5.
Owner’s Covenants as to
Insurance
.
Section 5.1 The Owner covenants with the Mortgagee and undertakes throughout the Security Period:
5.1.1 to insure the Vessel, or procure that the Vessel is insured, in its name and keep the Vessel and procure that the Vessel is kept
insured on an agreed value basis for an amount in Dollars approved by the Mortgagee,
provided
that at all times:
(a)
the insured value of the Vessel shall at all times be equal to or greater than its fair market value,
(b) the insured value of
the Vessel shall be equal to or greater than [*] of the then applicable Total Commitment,
(c) the hull and machinery insurance
for the Vessel shall at all times be equal to no less than [*] of the total insured value of such Vessel and [*] of the total insured value of the Vessel shall consist of hull interest and freight interest insurance;
through internationally recognized independent first class insurance companies, underwriters, war risks and protection and indemnity
associations reasonably acceptable to the Mortgagee in each instance on terms and conditions approved by the Mortgagee (with such approval not to be unreasonably withheld) including as to deductibles but at least in respect of:
(a) marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London
insurance markets under English marine policies, or the Norwegian Plan or Mortgagee-approved policies containing the ordinary conditions applicable to similar vessels;
(b) war risks including the Missing Vessel Clause, terrorism, piracy and confiscation and, should institute War and Strike
Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(c) excess risks that is to say the proportion of claims for general average and salvage charges and under the running
down clause not recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
(d) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the
Exhibit I
Page 10
Mortgagee and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period;
(e) when and while the Vessel is laid-up,
in lieu
of hull insurance, normal port risks;
(f) such other risks as the Mortgagee may from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in
respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Owner or the Mortgagee) such person shall if so required by the Mortgagee execute a first priority
assignment a of its interest in such insurances in favor of the Mortgagee in similar terms mutatis mutandis to the relevant Assignment of Insurances;
5.1.2 the Mortgagee at the cost of the Owner or the Parent shall take out, in each case, for an amount in Dollars approved by the Mortgagee but not being, collectively, less than [*] of the sum of the
then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Mortgagee may reasonably require, the Parent and the Owner having no interest or entitlement in respect of such
policies; the Mortgagee undertakes to use its reasonable endeavors to match the premium level that the Owner or the Parent would have paid if they had arranged such cover on such conditions (as demonstrated to the reasonable satisfaction of the
Mortgagee);
5.1.3 if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United
States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Owner shall comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in
any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of the Mortgage and in particular before such trade is commenced and during the entire period during which such trade is carried on the Owner
shall:
(a) pay any additional premiums required to maintain protection and indemnity cover for oil pollution
up to the limit available to it for the Vessel in the market;
(b) make all such quarterly or other voyage
declarations as may from time to time be required by the Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Mortgagee copies of such declarations;
(c) submit the Vessel to such additional periodic, classification, structural or other surveys which may be
required by the Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Mortgagee copies of reports made in respect of such surveys;
Exhibit I
Page 11
(d) implement any recommendations contained in the reports issued
following the surveys referred to in sub-clause (c) above within the time limit specified therein and provide evidence satisfactory to the Mortgagee that the protection and indemnity insurers are satisfied that this has been done;
(e) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Owner or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the Mortgagee on demand
with such information or evidence as it may reasonably require of such compliance;
(f) procure that the
protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Mortgagee with evidence that this is so; and
(g) strictly comply with any operational or structural regulations issued from time to time by any relevant
authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution;
5.1.4 to give notice forthwith of any assignment of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form reasonably approved by the
Mortgagee;
5.1.5 to execute and deliver all such documents and do all such things as may be necessary to confer upon the
Mortgagee legal title to the Insurances in respect of the Vessel and to procure that the interest of the Mortgagee is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable
clause in the form reasonably approved by the Mortgagee and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form reasonably
approved by the Mortgagee and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel;
5.1.6 at the Owner’s expense the Owner will cause such insurance brokers and the P & I club or association providing P & I insurance to agree to advise the Mortgagee by telex or telecopier
confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act or omission on the part of the Owner of which it has knowledge and which might invalidate or
render unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such unpaid premium or call, such right being exercisable by the Mortgagee on a vessel by vessel and not on a fleet basis. In
addition, the Owner or the Parent shall promptly provide the Mortgagee with any information which the Mortgagee reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the
adequacy of the insurances effected or proposed to be effected in accordance with the provisions contained herein as of the date hereof or in connection with any renewal thereof, and the Owner or the Parent shall upon demand indemnify the Mortgagee
in respect of all reasonable fees and other expenses incurred by or for the account of the Mortgagee in connection with any such report;
provided
the Mortgagee shall be entitled to such indemnity only for one such report during any period of
[*] months;
Exhibit I
Page 12
5.1.7 to procure that each of the relevant brokers and associations furnish the
Mortgagee with a letter of undertaking in such usual form as may be reasonably required by the Mortgagee and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel;
5.1.8 to punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to
produce all relevant receipts when so required by the Mortgagee;
5.1.9 to renew each of the Insurances on the Vessel at least
[*] Business Days before the expiry thereof and give immediate notice to the Mortgagee of such renewal and procure that the relevant brokers or associations shall promptly confirm in writing to the Mortgagee that such renewal is effected, it being
understood by the Owner that any failure to renew the Insurances on the Vessel at least [*] Business Days before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default;
5.1.10 to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war
risks association;
5.1.11 to furnish to the Mortgagee from time to time on request with full information about all Insurances
maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed;
5.1.12 not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Mortgagee (which approval shall not be unreasonably withheld) (save in
circumstances where the variation is imposed by the insurers or reinsurers without requiring the Owner’s consent in which case the Owner shall notify the Mortgagee of such variation in a timely manner) nor do any act or voluntarily suffer or
permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of
the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the
Insurances is imposed as aforesaid and in the absolute opinion of the Mortgagee its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Mortgagee would be adversely affected, the
Owner undertakes promptly to make such changes to the Insurances, or such alternative Insurance arrangements,
provided
that such alternative Insurance arrangements are available in the insurance market to the Owner at that time, as the
Mortgagee shall reasonably require;
5.1.13 not, without the prior written consent of the Mortgagee, settle, compromise or
abandon any claim in respect of any of the Insurances on the Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss;
5.1.14 promptly furnish the Mortgagee with full information regarding any casualties or other accidents or damage to the Vessel involving
an amount in excess of [*];
Exhibit I
Page 13
5.1.15 to apply or ensure the appliance of all such sums receivable in respect of the
Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received; and
5.1.16 that in the event of the Owner defaulting in insuring and keeping insured the Vessel as hereinbefore provided then the Mortgagee may (but shall not be bound to) insure the Vessel or enter the
Vessel in such manner and to such extent as the Mortgagee in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with interest thereon shall be paid on demand by the Owner to the Mortgagee.
6.
Owner’s Covenants as to Operation and Maintenance
.
Section 6.1 The Owner covenants with the Mortgagee and undertakes throughout the Security Period at the Owner’s own expense that it
will in respect of the Vessel:
6.1.1 keep it in a good and efficient state of repair so as to maintain it to the highest
classification available for a vessel of its age and type free of all recommendations and qualifications with Det Norske Veritas or another classification society listed on Schedule 7.21 of the Credit Agreement (or another internationally recognized
classification society reasonably acceptable to the Facility Agent). On the date hereof and annually thereafter, it will furnish to the Mortgagee a statement by such classification society that such classification is maintained. It will comply with
all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on board as and when required thereby valid certificates showing compliance therewith and shall procure that all
repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any materially adverse
modifications or alterations to the Vessel or any part thereof without the prior consent of the Mortgagee;
6.1.2 submit it to
continuous survey in respect of its machinery and hull and such other surveys as may be required for classification purposes and, if so required by the Mortgagee, supply to the Mortgagee copies in English of the survey reports;
6.1.3 permit surveyors or agents appointed by the Mortgagee to board the Vessel at all reasonable times to inspect its condition or
satisfy themselves as to repairs proposed or already carried out and afford all proper facilities for such inspections;
6.1.4
comply, or procure that the relevant Manager will comply, with the ISM Code or any replacement of the ISM Code and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISM Code and at all times
thereafter:
(a) hold, or procure that the relevant Manager holds, a valid Document of Compliance duly issued
to the Owner or the relevant Manager (as the case may be) pursuant to the ISM Code and a valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code;
(b) provide the Mortgagee with copies of any such Document of Compliance and Safety Management Certificate as soon as the
same are issued; and
Exhibit I
Page 14
(c) keep, or procure that there is kept, on board the Vessel a copy of
any such Document of Compliance and the original of any such Safety Management Certificate;
6.1.5 not employ the Vessel or
permit its employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or prohibited goods or in any manner whatsoever which may render it liable to condemnation in a prize court or to
destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world (whether war be declared or not) it will not employ the Vessel or permit its employment in carrying any contraband
goods;
6.1.6 not (i) cause or permit the Vessel to be operated in any manner contrary to law, (ii) abandon the
Vessel in a foreign port, (iii) engage in any unlawful trade or violate any law or carry any cargo that will expose the Vessel to penalty, forfeiture or capture, and (iv) do, or suffer or permit to be done, anything which can or may
injuriously affect the registration of the Vessel under the laws and regulations of the Commonwealth of the Bahamas and will at all times keep the Vessel duly documented thereunder.
6.1.7 promptly provide the Mortgagee with:
(a) all information which the Mortgagee may reasonably require regarding the Vessel, its employment, earnings, position and engagements;
(b) particulars of all towages and salvages; and
(c) copies of all charters and other contracts for its employment and otherwise concerning it;
6.1.8 notify the Mortgagee forthwith upon:
(a) any claim for material breach of the ISM Code or the ISPS Code being made against the Owner, an ISM Responsible Person or the manager of the Vessel in connection with the Vessel; or
(b) any other matter, event or incident, actual or which will or could lead to the material non-compliance with the ISM
Code or the ISPS Code;
and keep the Mortgagee advised in writing on a regular basis and in such detail as the Mortgagee shall
require, of the Owner’s and Vessel manager’s response to the items referred to in subclauses (a) and (b) above;
6.1.9 give notice to the Mortgagee promptly and in reasonable detail upon any Credit Party becoming aware of:
(a) accidents to the Vessel involving repairs the cost of which will or is likely to exceed [*];
(b) the Vessel becoming or being likely to become a Total Loss or a Compulsory Acquisition;
Exhibit I
Page 15
(c) any recommendation or requirement made by any insurer or
classification society or by any competent authority which is not complied with within any time limit relating thereto;
(d) any writ served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, its Earnings or Insurances;
(e) the occurrence of any Event of Default;
(f) the Vessel ceasing to be registered as a Bahamian vessel or anything which is done or not done whereby such
registration may be imperiled;
(g) it becoming impossible or unlawful for it to fulfill any of its obligations
under the Secured Debt Documents; and
(h) anything done or permitted or not done in respect of the Vessel by
any person which is likely to imperil the security created by the Secured Debt Documents;
6.1.10 promptly pay and discharge
all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel and keep proper books of account in respect thereof provided always that the Owner shall not be obliged to
compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested debt, damage or liability which, either individually or in aggregate exceeds [*] shall
forthwith be provided to the Mortgagee. As and when the Mortgagee may so require it will make such books available for inspection on behalf of the Mortgagee and provide evidence satisfactory to the Mortgagee that the wages and allotments and the
insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crew’s wages in respect of any tax liability are being properly accounted for and that the master has no claim for disbursements other
than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection;
6.1.11 maintain the type of the Vessel as at the date hereof and not put the Vessel into the possession of any person without the prior
consent of the Mortgagee for the purpose of work being done on it in an amount exceeding or likely to exceed [*] unless such person shall first have given to the Mortgagee a written undertaking addressed to the Mortgagee in terms reasonably
satisfactory to the Mortgagee agreeing not to exercise a lien on the Vessel or its Earnings for the cost of such work or for any other reason;
6.1.12 promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to whose jurisdiction the
Vessel may from time to time be subject provided always that the Owner shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested liabilities which,
either individually or in aggregate, exceed [*] shall be forthwith provided to the Mortgagee. If the Vessel is arrested or detained for any reason it will procure the Vessel’s immediate release by providing bail or taking such other steps as
the circumstances may require;
Exhibit I
Page 16
6.1.13 give to the Mortgagee at such times as it may from time to time require a
certificate, duly signed on the Owner’s behalf as to the amount of any debts, damages and liabilities relating to the Vessel and, if so required by any Secured Debt Document or this Deed, forthwith discharge such debts, damages and liabilities
to the Mortgagee’s satisfaction;
6.1.14 not transfer or change the flag of documentation or home port of the Vessel
except to the extent permitted by Section 9.13 of the Credit Agreement;
6.1.15 where the Vessel trades in the
territorial waters of the United States of America, take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time
hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a “
Relevant Jurisdiction
”) and, for this purpose shall (
inter
alia
) enter into a “Carrier
Initiative Agreement” with the United States’ Bureau of Customs and Border Protection (if such is possible) or into voluntary arrangements made under the Customs-Trade Partnership Against Terrorism of the United States of America (if such
is possible and appropriate to cruise vessels) and procure that the same (or a similar agreement or arrangement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the
Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading;
6.1.16 not enter into:
(a) any pooling agreement or other
arrangement for the sharing of any of the Earnings or the expenses of the Vessel; or
(b) any (x) demise
or bareboat charter other than a demise or bareboat charter of the Vessel made with another member of the NCLC Group or (y) charter or other form of deployment of the Vessel to a charterer that is not a member of the NCLC group (A) which,
with the exercise of any options for extension, could be for a period longer than 13 months or (B) which is other than at or about market rate at the time when the charter or deployment is fixed, unless, in each case, the Owner procures (or in
the case of clause (y) uses commercially reasonable efforts to procure) that (i) each of the Owner and the charterer assigns the benefit of any such charter to the Mortgagee, (ii) each of the Owner and the charterer assigns its
interest in the insurances in respect of the Vessel to the Mortgagee, and (iii) the charterer agrees to subordinate its interests in the Vessel to the interests of the Mortgagee, all on terms and conditions reasonably acceptable to the
Mortgagee;
6.1.17 except with the prior consent of the Mortgagee (not to be unreasonably withheld), not:
(a) permit any person other than the relevant Manager to be the manager of, including providing crewing services to, the
Vessel;
(b) permit any amendment to be made to the terms of the management agreement in respect of the Vessel
that is materially adverse to the Mortgagee,
provided
that the amendment does not imperil the security to be provided pursuant to the Secured Debt Documents or adversely affect the ability of any Credit Party to perform its obligations under
the Secured Debt Documents; or
Exhibit I
Page 17
(c) permit the Vessel to be employed other than within the NCL Group or
NCL America brand (as applicable); and
6.1.18 to comply in relation to the Vessel with the ISPS Code or any replacement of
the ISPS Code and in particular, without limitation:
(a) to procure that the Vessel and the company
responsible for the Vessel’s compliance with the ISPS Code comply with the ISPS Code;
(b) to maintain for
the Vessel throughout the Security Period a valid and current ISSC; and
(c) to provide the Mortgagee with a
copy of any such ISSC as soon as the same is issued.
7.
Expenses
.
Section 7.1 The Owner undertakes to pay to the Mortgagee on demand all reasonable and documented moneys whatsoever which the Mortgagee
shall or may expend be put to or become liable for in or about the protection, maintenance or enforcement of the security created by this Deed and the other Secured Debt Documents or in or about the exercise by the Mortgagee of any of the powers
vested in it under this Deed or under any of the other Secured Debt Documents and to pay interest thereon at the Default Rate from the date of demand until the date of actual receipt (whether before or after any relevant judgment).
Section 7.2 The Owner undertakes to pay on demand to the Mortgagee (or as it may direct) the amount of all investigation and legal
expenses of any kind whatsoever, stamp duties (if any), registration fees and any other charges incurred by the Mortgagee in connection with the preparation, completion and registration of the Secured Debt Documents or otherwise in connection with
the Secured Obligations and the security therefor.
8.
Protection and Maintenance of Security
.
Section 8.1 The Mortgagee shall without prejudice to its other rights and powers hereunder be entitled (but not bound) at any time and as
often as may be necessary to take any such action as it may in its absolute discretion think fit for the purpose of protecting the security created by this Deed and the other Secured Debt Documents and each and every reasonable and documented
expense or liability so incurred by the Mortgagee in or about the protection of the security shall be repayable to it by the Owner on demand together with interest thereon at the Default Rate from the date of demand until the date of actual receipt
whether before or after any relevant judgment.
Section 8.2 The total amount of the direct and contingent obligations secured
by the Mortgage is Five Hundred Eighty-Eight Million One Hundred and Twenty-Nine Thousand Two Hundred and Thirty Euros and Ninety-Four cents (€588,129,230.94)
plus
interest and performance of mortgage covenants.
Exhibit I
Page 18
Section 8.3 Without prejudice to the generality of the foregoing:
8.3.1 if the provisions of
Section 5.1
or any of them are not complied with the Mortgagee shall be at liberty to effect and
thereafter to maintain all such insurances upon the Vessel as it in its discretion may think fit;
8.3.2 if the provisions of
Sections 6.1.1
and
6.1.3
or any of them are not complied with the Mortgagee shall be at liberty to arrange for the carrying out of such repairs and/or surveys as it deems expedient or necessary;
8.3.3 if the provisions of
Section 6.1.8
or any of them are not complied with the Mortgagee shall be at liberty to pay and
discharge all such debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings as are therein mentioned and/or take any such measures as it deems expedient or necessary for the purpose of securing
the release of the Vessel; and
8.3.4 if the Mortgagee receives notice of any security created or arising after the date of
this Deed in respect of the Vessel (other than a Permitted Lien) or makes demand of the Owner for payment of any or all of the Secured Obligations in accordance with the Secured Debt Documents:
(a) the Mortgagee may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does
not do so it shall be treated as if it had done so at the time it received such notice or made such demand); and
(b) thereafter any amounts paid by the Owner to the Mortgagee in respect of the Secured Obligations, or realised or
recovered by the Mortgagee under this Deed, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations
and each and every expense or liability so incurred by the Mortgagee shall be recoverable from the Owner as provided in
Section 7.1
together
with interest thereon at the Default Rate.
9. Enforcement of Rights
Section 9.1 Upon the occurrence and during the continuance of an Event of Default the Mortgagee shall become forthwith entitled as and
when it may see fit to put into force and to exercise all the powers possessed by it as mortgagee and chargee of the Mortgaged Premises and in particular:
9.1.1 to take possession of the Vessel;
9.1.2 to require that all policies,
contracts and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such brokers as the Mortgagee may nominate;
Exhibit I
Page 19
9.1.3 to collect, recover, compromise and give a good discharge for all claims then
outstanding or thereafter arising under the Insurances or any of them and to take over or institute (if necessary using the name of the Owner) all such proceedings in connection therewith as the Mortgagee in its absolute discretion may think fit and
to permit the brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
9.1.4 to
discharge, compound, release or compromise claims in respect of the Vessel which have given or may give rise to any charge or lien on the Vessel or which are or may be enforceable by proceedings against the Vessel;
9.1.5 to sell the Vessel or any share therein with or without prior notice to the Owner and with or without the benefit of any
charterparty by public auction or private contract at home or abroad and upon such terms as the Mortgagee in its absolute discretion may determine with power to postpone any such sale and without being answerable for any loss occasioned by such sale
or resulting from postponement thereof;
9.1.6 pending sale of the Vessel, to manage, insure, maintain and repair the Vessel
and to employ or lay up the Vessel in such manner and for such period as the Mortgagee in its absolute discretion may deem expedient and for the purposes aforesaid the Mortgagee shall be entitled to do all acts and things incidental or conducive
thereto and in particular to enter into such arrangements respecting the Vessel, its insurance, management, maintenance, repair and employment in all respects as if the Mortgagee were the owners of the Vessel and without being responsible for any
loss thereby incurred;
9.1.7 to recover from the Owner on demand any such losses as may be incurred by the Mortgagee in or
about the exercise of the power vested in the Mortgagee under
Section 9.1.6
; and/or
9.1.8 to recover from the
Owner on demand all expenses, payments and disbursements incurred by the Mortgagee in or about or incidental to the exercise by it of any of the powers aforesaid together with interest thereon at the Default Rate,
provided
always that upon any sale of the Vessel or any share therein by the Mortgagee pursuant to
Section 9.1.5
the purchaser shall
not be bound to see or enquire whether the Mortgagee’s power of sale has arisen in the manner herein provided and the sale shall be deemed to be within the power of the Mortgagee and the receipt of the Mortgagee for the purchase money shall
effectively discharge the purchaser who shall not be concerned with the manner or application of the proceeds of sale or be in any way answerable therefor.
10.
Application of Moneys
. All moneys received by the Mortgagee in respect of:
Section 10.1 sale by the Mortgagee of the Vessel or any share therein;
Section
10.2 recovery under the Insurances; or
Section 10.3 Compulsory Acquisition Compensation;
shall be applied by it in accordance with Section 4.05 of the Credit Agreement.
Exhibit I
Page 20
11.
Receivers
.
Section 11.1 At any time after the occurrence and during the continuation of an Event of Default, or if the Owner requests it to do so,
the Mortgagee may by a written instrument and without notice to the Owner appoint one or more suitably experienced and reputable persons as Receiver of all or any part of the Vessel, each such person being entitled to act individually as well as
jointly and being for all purposes the agent of the Owner.
Section 11.2 The appointment of a Receiver pursuant to
Section 11.1 shall be deemed to be subject to the following provisions:
11.2.1 the Receiver shall be the agent of the
Owner, and the Owner alone shall be responsible for his acts, defaults and payment of remuneration;
11.2.2 the Receiver shall
be entitled to remuneration for services at a rate to be determined by the Mortgagee (acting reasonably) from time to time on the basis of charging from time to time adopted by him or his firm (without being limited to the maximum rate specified by
the Law of Property Act 1925);
11.2.3 any Receiver shall have and be entitled to exercise all the rights, powers and remedies
conferred upon the Mortgagee by this Deed and by applicable law with respect to the Vessel and/or the Mortgage (including, without limitation, all of the powers and rights of a legal and beneficial owner and the power to do or omit to do anything
which the Owner itself could do or omit to do); and
11.2.4 any Receiver shall have the power to do all things (including
bringing or defending proceedings in the name or on behalf of the Owner) which seem to the Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred on or vested in such Receiver or
(b) the exercise of the Mortgage.
Sections 109(6) and 109(8) of the Law of Property Act 1925 shall not apply in relation to any Receiver
appointed pursuant to Section 11.1.
In addition to the powers conferred on the Mortgagee by this Deed, each Receiver appointed pursuant
to Section 11.1 shall have in relation to the Vessel (i) all the powers conferred by the Law of Property Act 1925 (as extended by this Deed) on a Receiver appointed under that Act and (ii) (whether or not such Receiver is an
administrative receiver) all the powers of an administrative receiver set out in Schedule 1 to the Insolvency Act 1986.
12.
No Waiver
. No delay or omission of the Mortgagee to exercise any right or power vested in it under the Secured Debt Documents or any of them shall impair such right or power or be construed as a waiver of or as acquiescence in any default by
the Owner and in the event of the Mortgagee at any time agreeing to waive any such right or power such waiver shall be revocable by the Mortgagee at any time and the right or power shall thenceforth be again exercisable as though there had been no
such waiver.
13.
Power of Delegation
. The Mortgagee shall be entitled at any time and as often as may be expedient to
delegate all or any of the powers and discretions vested in it by the Secured Debt Documents or any of them (including the power vested in it by virtue of
Section 14
) in such manner upon such terms and to such persons as the Mortgagee in
its absolute discretion may think fit.
Exhibit I
Page 21
14.
Power of Attorney
.
Section 14.1 The Owner hereby irrevocably appoints the Mortgagee as its Attorney for the duration of the Security Period for the purpose
of doing in its name all acts which the Owner itself could do in relation to the Vessel;
provided
,
however
, that such power shall not be exercisable by or on behalf of the Mortgagee until payment of the Secured Obligations shall have
been demanded under
Section 9
.
Section 14.2 The exercise of such power by or on behalf of the Mortgagee shall not
put any person dealing with the Mortgagee upon any enquiry as to whether payment of the Secured Obligations has been demanded, such person shall not be in any way affected by notice that payment of the Secured Obligations has not been so demanded
and the exercise by the Mortgagee of such power shall be conclusive evidence to such person of the Mortgagee’s right to exercise the same nor shall such person be in any way affected by any total or partial discharge of liabilities or variation
of terms which is effected by or connected with any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
15.
Further Assurance
. The Owner hereby further undertakes at its own expense to execute, sign, perfect, do and (if required) register every such further assurance document, act or thing as in the
opinion of the Mortgagee may be necessary or desirable for the purpose of more effectually mortgaging and charging the Mortgaged Premises or perfecting the security constituted thereby.
16.
Assignment
. The Mortgagee may not resign, assign or transfer in its capacity as security trustee, except in accordance with
the terms of the Security Trust Deed.
17.
Waiver of Rights as Surety
.
Section 17.1 The rights of the Mortgagee under the Mortgage and/or this Deed, the security constituted by the Mortgage and/or this Deed
and the warranties, covenants, obligations and undertakings of the Owner contained in the Mortgage and/or, this Deed shall not in any way be discharged, impaired or otherwise affected by:
17.1.1 any forbearance (whether as to payment or otherwise) or any time or other indulgence granted to any other party to any one or more
of the Secured Debt Documents under or in connection with any of the Secured Debt Documents;
17.1.2 any amendment or
variation of any of the Secured Debt Documents;
17.1.3 any failure of any of the Secured Debt Documents to be legal, valid,
binding and enforceable in relation to any Credit Party for any reason whatsoever;
17.1.4 the winding-up or dissolution of
any Credit Party,
17.1.5 the release (whether in whole or in part) of, or the entering into of any compromise or composition
with, any Credit Party; or
17.1.6 any other act, omission, thing or circumstance which would or might, but for this
provision, operate to discharge, impair or otherwise affect the same.
Exhibit I
Page 22
Section 17.2 Until the Secured Obligations have been unconditionally and irrevocably
paid and discharged in full, all commitments under the Secured Debt Documents have been terminated and all letters of credit issued thereunder have been terminated the Owner shall not by virtue of any payment made hereunder or under the Mortgage on
account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, the Mortgage and/or this Deed or by virtue of any relationship between or transaction involving, the Owner and
any Credit Party:
17.2.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or
receivable by the Mortgagee or any other person; or
17.2.2 exercise any right of contribution from any Credit Party under any
one or more of the Secured Debt Documents; or
17.2.3 exercise any right of set-off or counterclaim against any Credit Party;
or
17.2.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any Credit Party; or
17.2.5 unless so directed by the Mortgagee (when the Owner will prove in accordance with such directions), claim as a
creditor of any Credit Party in competition with the Mortgagee,
and the Owner shall hold in trust for the Mortgagee and forthwith pay or
transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
Section 17.3 The Owner’s liabilities under this Deed shall not be in any way affected by any total or partial discharge of
liabilities or variation of terms which is effected by or connected with any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
18.
No Obligations Imposed on Mortgagee
. Without prejudice to paragraph 10 of Schedule 1 of the Merchant Shipping Act 1995, the Owner shall remain liable to perform all obligations connected with
the Mortgaged Premises and the Mortgagee shall not, in any circumstances, have or incur any obligation of any kind in connection with the Mortgaged Premises.
19.
Law of Property Act 1925 not applicable
. The Owner hereby waives the entitlement conferred by section 93 of the Law of Property Act 1925 and agrees that section 103 of that Act shall not apply
to the security created by the Mortgage and this Deed.
20.
No Liability of Mortgagee
. The Mortgagee shall not be
obliged to check the nature or sufficiency of any payment received by it or him under the Mortgage or this Deed or to preserve, exercise or enforce any right forming part of, or relating to, any item of the Mortgaged Premises.
Exhibit I
Page 23
21.
No Requirement to Commence Proceedings
. The Mortgagee will not need to
commence any proceedings under, or enforce any lien created by the Secured Debt Documents before commencing proceedings under, or enforcing any lien created by, the Mortgage or this Deed.
22.
No Restriction on Other Rights
. Nothing in the Mortgage or this Deed shall be taken to exclude or restrict any power, right or
remedy which the Mortgagee or any other Credit Party may at any time have under:
(a) any other Secured Debt
Document; or
(b) the law of any country or territory the courts of which have or claim any jurisdiction in
respect of the Owner, the Vessel or any other item of the Mortgaged Premises.
23.
Exercise of Other Rights
. The
Mortgagee may exercise any right under the Mortgage and this Deed before it or any other Credit Party has exercised any right referred to in Section 22(a) or (b) above.
24.
Settlement or Discharge Conditional
. Any settlement or discharge under the Mortgage and this Deed (or either of them) between
the Mortgagee or any other Credit Party and the Owner shall be conditional upon no security or payment to the Mortgagee or any other Credit Party by the Owner or any other person being set aside, adjusted or ordered to be repaid, whether under any
insolvency law or otherwise.
25.
Severability of Provisions
. If any provision of this Deed is or subsequently becomes
void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of this Deed or of the provisions of any other Secured Debt Document.
26.
Notices
.
Section 26.1 Each communication to be made hereunder shall unless otherwise stated, be made in writing by telefax or letter.
Section 26.2 Any notice, demand, communication or document to be made or delivered by the Mortgagee to the Owner pursuant to this Deed shall (unless the Owner has by fifteen (15) days’ written
notice to the Mortgagee specified another address) be made or delivered to the Owner at c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the Chief Financial Officer, telefax no +1 305
436 4140, and the Legal Department, telefax no +1 305 436 4117) (but one (1) copy shall suffice) and shall be deemed to have been made or delivered (in the case of any communication made by telefax) when transmission of such telefax
communication has been completed or (in the case of any communication made by letter) when left at that address or (as the case may be) five (5) days after being deposited in the post postage prepaid in an envelope addressed to it at that
address;
provided
that any communication or document to be made or delivered to the Mortgagee shall be effective only when received by the Mortgagee and then only if the same is expressly marked for the attention of the department or officer
specified by the Mortgagee for this purpose from time to time.
Section 26.3 Each communication and document made or delivered
by one (1) party to another party or parties pursuant to this Deed shall be in the English language or accompanied by a translation thereof into English certified (by an officer of the person making or delivering the same) as being a true and
accurate translation thereof.
Exhibit I
Page 24
27.
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
.
Section 27.1 This Deed and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in
accordance with the Laws of England and for the exclusive benefit of the Mortgagee the Owner hereby irrevocably submits to the jurisdiction of the High Courts of Justice in England. Such submission shall not limit the right of the Mortgagee to
commence any proceedings relating to this Deed (in addition or alternatively) in any other jurisdiction which the Mortgagee deem fit.
Section 27.2 For the purpose of any legal proceedings arising out of or in connection with the Mortgage and/or this Deed the Owner irrevocably appoints the Process Agent as its agent to accept service on
its behalf without prejudice to any other lawful means of service.
Section 27.3
THE OWNER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION DEED BROUGHT IN THE COURTS REFERRED TO IN SECTION 27.1 ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
* * *
Exhibit I
Page 25
IN WITNESS WHEREOF, the Owner and the Mortgagee have caused this Deed to be duly
executed by each of their authorized representatives the day and year first above written.
Signed as a deed and delivered on
behalf of
BREAKAWAY ONE, LTD.
, a Bermuda company, as Owner, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
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BREAKAWAY ONE, LTD.
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By:
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Name:
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Title:
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Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Mortgagee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
Exhibit I
Page 26
[ACKNOWLEDGMENT
STATE )
: SS:
COUNTY OF
)
On this
[ ] day of [DATE], before me personally appeared [NAME], known to me to be the person who executed the foregoing instrument, who, being by me duly sworn did depose and say that
he resides at
,
; that he is [TITLE] of BREAKAWAY ONE, LTD., the Bermuda company described
in and which executed the foregoing instrument; that he signed his name pursuant to authority granted to him by BREAKAWAY ONE, LTD.; and that he further acknowledged that said instrument is the act and deed of BREAKAWAY ONE, LTD.
[FOR USE IN THE
COMMONWEALTH OF THE BAHAMAS]
EXHIBIT J
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [•] 2010
HULL NO. S. 678
FORM OF ASSIGNMENT OF CONTRACTS
between
BREAKAWAY ONE, LTD.
as Borrower
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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COVENANT TO PAY
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5
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3.
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LEGAL ASSIGNMENT
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5
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4.
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THE CONTRACT
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6
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5.
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CONTINUING SECURITY
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8
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6.
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REPRESENTATIONS AND WARRANTIES
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9
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7.
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UNDERTAKINGS
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11
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8.
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FURTHER ASSURANCE
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12
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9.
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ENFORCEMENT OF SECURITY
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12
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10.
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RECEIVERS
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13
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11.
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APPLICATION OF PROCEEDS
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14
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12.
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POWER OF ATTORNEY
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14
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13.
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RELEASE OF THE SECURITY
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14
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14.
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PAYMENTS
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14
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15.
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WAIVERS AND REMEDIES
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15
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16.
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ADDITIONAL PROVISIONS
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15
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17.
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ASSIGNMENT
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16
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18.
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NOTICES
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16
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19.
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GOVERNING LAW
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18
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20.
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COUNTERPARTS AND EFFECTIVENESS
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19
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SCHEDULE 1 FORMS OF NOTICE OF ASSIGNMENT
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20
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SCHEDULE 2 FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
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30
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
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40
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White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
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(1)
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BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”); and
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(2)
|
KFW IPEX-BANK GMBH,
as collateral agent for and on behalf of the Secured Creditors (the “
Collateral Agent
”, which expression includes any person
which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
|
The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
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(C)
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The Borrower and the Collateral Agent intend this Assignment to take effect as a deed.
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(D)
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The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreement, the Security Trust
Deed and the Intercreditor Agreement.
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In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
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(a)
|
Part 1, in the case of the Construction Contract;
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(b)
|
Part 2, in the case of the Refund Guarantees; and
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(c)
|
Part 3, in the case of the Construction Risks Insurance Policies; and
|
or in each case in such other form as may be approved by the Collateral Agent.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit Agreement.
“
Assigned Rights
” means the Borrower’s rights, title, interest and
benefits in, to and in respect of the Contracts.
“
Construction Contract
” means the construction contract
dated 24 September 2010 between the Borrower, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel (as defined in the Credit Agreement).
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the
Shipbuilder and the Borrower in connection with the construction of the Vessel under the Construction Contract.
“
Contracts
” means each of the:
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(a)
|
the Construction Contract;
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(b)
|
the Refund Guarantees; and
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(c)
|
the Construction Risks Insurance Policies.
|
“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, the Parent, the Borrower, the Joint Lead Arrangers (as
defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Borrower, the Lenders, the collateral agent under the Jade Credit
Facility, the collateral agent under the Jewel Credit Facility and the Collateral Agent.
“
Lender Creditors
”
means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in
respect of principal, interest or otherwise, whether actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1 (
Forms of Notice of Assignment
) being:
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(a)
|
Part 1, in the case of the Construction Contract;
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(b)
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Part 2, in the case of each Refund Guarantees;
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(c)
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Part 3, in the case of the Construction Risks Insurance Policies;
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or in each case such other form as may be approved by the Collateral Agent.
2
“
Other Creditors
” means each Lender or any affiliate thereof with which the
Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even
if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 1 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the
Borrower, and the Collateral Agent as security trustee on behalf of the Term Loan Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Assignment, pursuant to
any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all
refund guarantees from time to time issued in favour of the Borrower to secure certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund
guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
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(a)
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none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
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(b)
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all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
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“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
“
Shipbuilder
” means Meyer Werft GmbH.
3
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1.2
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Continuing Event of Default
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An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
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1.4
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References to Agreements
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Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
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(a)
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such agreement or document as amended, varied, novated or supplemented from time to time;
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(b)
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any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
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(c)
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any other agreement or document entered into pursuant to or in accordance with such agreement or document.
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A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
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(a)
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the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
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(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
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4
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
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1.9
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Clause and Schedule Headings
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Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Borrower agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Collateral Agent.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured
Obligations.
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3.2
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Non-Assignable Rights
|
The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
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(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
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5
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(b)
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promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
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(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Borrower shall countersign such Notice of Assignment.
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(b)
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As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Borrower
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
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3.4
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Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
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4.1
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No Dealings with the Contract
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(a)
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The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
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(i)
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receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Borrower under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
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(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
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(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or
supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the
Collateral Agent shall be
|
6
|
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required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely
affects the ability of the Borrower to perform its obligations under the Credit Documents;
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(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Borrower on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
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(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
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(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts).
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(b)
|
Notwithstanding anything to the contrary herein, the Borrower may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
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(c)
|
The Borrower acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
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4.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
7
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5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
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(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
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(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the Collateral
Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
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5.3
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Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
8
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
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(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
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(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
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(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
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(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
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(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
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(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
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(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
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(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
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(b)
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the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
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6.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Borrower acknowledges that the Collateral Agent has entered
into this Assignment in reliance on those representations and warranties.
9
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreement, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
10
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement and the Credit Agreement, no person other
than the Borrower has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise,
the benefit of all or any of the Assigned Rights.
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
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(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Borrower
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Borrower shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
11
|
|
(a)
|
The Borrower shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Borrower shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement
to Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Collateral Agent until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times
and in such manner as it thinks fit.
12
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal
in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Borrower.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
13
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement or, following the termination thereof, in accordance with the provisions of the Credit Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Borrower shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
14
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Borrower in
15
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any
such judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit
Agreement.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deed.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
16
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
17
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Borrower agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Borrower to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
18
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower and the Collateral Agent.
19
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
PART 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
Industriegebiet Süd
D-26871 Papenburg
Germany
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [•] (the
“
Assignment
”) and made between Breakaway One, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Borrower has assigned to the Collateral Agent a first
priority assignment of all of its rights, title, interests and benefits in, to or in respect of the construction contract dated 24 September 2010 between the Borrower and you, as shipbuilder in relation to the design, engineering, building,
launching, equipping and outfitting of the passenger cruise ship (the “
Ship
”) with provisional hull number 678 (the “
Construction Contract
”).
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Borrower as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as the Collateral Agent and Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and
Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent, all payments to be made to the Borrower under or arising from the Construction
Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
20
|
(c)
|
following an Event of Default, all remedies of the Borrower provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Contract are assigned to the
Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Borrower may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or
changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Contract. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the
Collateral Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
21
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
|
|
BREAKAWAY ONE, LTD.
|
22
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated
[
•
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Borrower has assigned to the
Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
•
] and issued by you as refund guarantor in favour of the Borrower pursuant to which you
guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the
Refund Guarantee.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Borrower provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Collateral Agent;
|
23
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Borrower has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is
given by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Borrower
which meets the Borrower’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by the Facility Agent (as defined in the Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Refund Guarantee. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Collateral Agent).
24
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
|
|
BREAKAWAY ONE, LTD.
|
25
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated
[
•
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Borrower has assigned to the
Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated [
•
] issued for the benefit of Meyer Werft GmbH (the
“
Yard
”) and the Borrower in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance
Policy
”), including all monies which may be payable to the Borrower under or in respect of the Construction Risks Insurance Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Borrower provided for in the Construction Risks Insurance Policy or available at law or in equity shall be
exercisable by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
26
|
(e)
|
the Borrower has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver,
amendment or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written
consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the
ability of the Borrower to perform its obligations under the Credit Documents (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd., the Borrower, the Joint Lead
Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as Collateral Agent and as Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent).
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Risks Insurance Policy. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Borrower.
27
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
|
|
BREAKAWAY ONE, LTD.
|
28
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated
20[•]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [•] has assigned to
KFW IPEX-BANK
GMBH
of [•] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in
writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [•] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee,
the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this
policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s interests in this policy.
29
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1 FORM OF ACKNOWLEDGMENT OF
ASSIGNMENT FROM THE SHIPBUILDER
[
To be printed only on copy of the Notice of Assignment given
]
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To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the
Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Construction Contract) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title,
interests and benefits in, to or in respect of the Construction Contract and that we will comply with the terms of the Notice.
We also
confirm that the Construction Contract is in full force and effect in accordance with its terms. We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized
terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable) with respect to the Construction Contract.
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Yours faithfully
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For and on behalf of
Meyer Werft GmbH
as Shipbuilder
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By:
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Date:
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30
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND
GUARANTOR
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the
Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title,
interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree
and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
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Yours faithfully
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For and on behalf of
[the Refund Guarantor]
as Refund
Guarantor
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By:
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Date:
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31
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[
To be printed only on copy of
the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
HULL NO. S. 678
(the “
Vessel
”)
BREAKAWAY ONE, LTD.
(the
“
Borrower
”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (i) (other than in respect of junior liens held by the Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Construction Risks
Insurance Policy) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply
with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Borrower as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its authorised managers or agents and in consideration of you and the Borrower approving us as the appointed brokers in connection with the
insurances covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
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2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
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3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Borrower and acknowledged by underwriters in accordance with market practice; and
|
32
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4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
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5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
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6.
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to forward to you promptly any notices of cancellation that we receive from underwriters; and
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7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
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8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
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9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
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Yours faithfully
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For and on behalf of
[the Broker]
as
[Broker]
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By:
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Date:
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34
ANNEX 1
DETAILS OF INSURANCES
35
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated
20[•]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [•] has assigned to
KFW IPEX-BANK
GMBH
of [•] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in
writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [•] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee,
the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this
policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s interests in this policy.
36
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated
[
•
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Borrower has assigned to the
Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated [
•
] issued for the benefit of Meyer Werft GmbH (the
“
Yard
”) and the Borrower in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance
Policy
”), including all monies which may be payable to the Borrower under or in respect of the Construction Risks Insurance Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
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(b)
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following an Event of Default, all remedies of the Borrower provided for in the Construction Risks Insurance Policy or available at law or in equity shall be
exercisable by the Collateral Agent;
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(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
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(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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37
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(e)
|
the Borrower has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver,
amendment or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written
consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the
ability of the Borrower to perform its obligations under the Credit Documents (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd., the Borrower, the Joint Lead
Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as Collateral Agent and as Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent).
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(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent to such termination;
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(g)
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the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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(h)
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the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Risks Insurance Policy. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Borrower; and
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(i)
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the Borrower remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of
no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
38
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
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Yours faithfully
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For and on behalf of
BREAKAWAY ONE, LTD.
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39
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
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[Name of Issuer]
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[Date of Refund Guarantee]
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40
SIGNATORIES
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Signed as a deed on behalf of
BREAKAWAY ONE, LTD,
a company incorporated in Bermuda, by
[
full name(s) of person(s)
signing]
, being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by
[full name(s) of person(s)
signing]
, being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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41
EXHIBIT K
FORM OF SOLVENCY CERTIFICATE
[
], 2010
This Solvency Certificate is delivered pursuant to Section 6.10 of the Credit Agreement, dated as of
[
], 2010, among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), Breakaway One, Ltd., a Bermuda company (the “
Borrower
”), the
Lenders from time to time party thereto, KfW IPEX-Bank GmbH, as Facility Agent, Collateral Agent under the Security Documents and CIRR Agent, Nordea Bank Norge ASA, as Documentation Agent, Commerzbank Aktiengesellschaft, as Hermes Agent and the
other parties thereto (as the same may be amended, restated, novated or otherwise modified from time to time, the “
Credit Agreement
”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
The undersigned, a senior financial officer of the Parent, hereby certifies to the
Facility Agent and each of the Lenders, solely in such capacity and on behalf of the Parent as follows:
1. I
am a senior financial officer of the Parent. I am familiar with the Transaction, and have reviewed the financial statements referred to in Section 8.05 of the Credit Agreement and other such documents and made such investigations as I have
deemed relevant for the purposes of this Solvency Certificate.
2. On and as of the date hereof, immediately
after giving effect to the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of the Vessel), the Parent and its Subsidiaries taken as a
whole (i) are not insolvent and will not be rendered insolvent by the Indebtedness incurred in connection with the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with
respect thereto and to the purchase of the Vessel); (ii) will not have unreasonably small capital with which to conduct the business in which they are respectively engaged as such businesses are now conducted and are proposed to be conducted
following the Borrowing Date to occur on or about the date hereof; and (iii) have not incurred debts beyond their ability pay such debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become
absolute, matured, or otherwise become payable.
This Solvency Certificate is being delivered by the undersigned officer only
in his capacity as a senior financial officer of the Parent and not individually and the undersigned shall have no personal liability to the Agents or the Lenders with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first
set forth above.
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NCL CORPORATION LTD.
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By:
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Title:
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EXHIBIT L
F
ORM
OF
A
SSIGNMENT
A
GREEMENT
|
To:
|
[ ] as Facility Agent and
[ ], [ ] as Hermes Agent, [ ] as
Parent, for and on behalf of the Borrower
|
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From:
|
[the
Existing Lender
] (the “
Existing Lender
”) and [the
New Lender
] (the “
New Lender
”)
|
Dated:
Breakaway One, Ltd.
– €529,846,154 Credit Agreement
dated
[ ] (the “Credit Agreement”)
|
1.
|
We refer to the Credit Agreement and to the Intercreditor Agreement (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall take
effect as an Assignment Agreement for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
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2.
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We refer to section 13.07 (
Procedure and Conditions for Assignment
) of the Credit Agreement:
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(a)
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The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Credit Agreement, the other Credit Documents and in respect of
the Collateral which correspond to that portion of the Existing Lender’s Commitments and participations in Borrowings under the Credit Agreement as specified in the Schedule attached hereto.
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(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and
participations in Borrowings under the Credit Agreement specified in the Schedule attached hereto.
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(c)
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The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
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3.
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The proposed date of the assignment is [ ].
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4.
|
On the date of the assignment the New Lender becomes:
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(a)
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Party to the relevant Credit Documents (other than the Intercreditor Agreement and the Security Trust Deed) as a Lender; and
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(b)
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Party to the Intercreditor Agreement as an ECF Lender; and
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(c)
|
Party to the Security Trust Deed as a Secured Creditor[.][; and]
|
EXHIBIT L
2
|
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(d)
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[Party to the Interaction Agreement.]
1
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5.
|
The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule.
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6.
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The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
Responsibility of Existing Lenders
).
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7.
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We refer to Clause 9.2 (
Change to the Parties
) of the Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) in the Security Trust Deed.
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(a)
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In consideration of the New Lender being accepted as an ECF Lender for the purposes of the Intercreditor Agreement (and as defined therein), the New Lender confirms
that, as from the date of assignment, it intends to be party to the Intercreditor Agreement as an ECF Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an ECF Lender and agrees that it
shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
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(b)
|
In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the assignment, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
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8.
|
This Agreement acts as notice to the Facility Agent (on behalf of each Lender Creditor) and, upon delivery in accordance with section 13.08 (
Copy of Transfer
Certificate or Assignment Agreement to Parent
), to the Parent (on behalf of the Borrower) of the assignment referred to in this Agreement.
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9.
|
We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the assignment becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
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1
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Applicable to any New Lender that elects to become a Refinanced Bank
|
EXHIBIT L
3
|
10.
|
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.
|
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11.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
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12.
|
This Agreement takes effect as a deed.
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13.
|
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
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Note:
|
The execution of this Assignment Agreement may not assign a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It is
the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect an assignment of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
|
EXHIBIT L
4
THE SCHEDULE
Commitment/rights and obligations to be transferred by assignment, release and accession
[insert relevant details]
[Notice Office address, fax number and attention details for notices and account details for payments]
EXHIBIT L 5
SIGNATORIES
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[Existing Lender]
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Executed as a deed by
[name of Existing Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender]Executed as a deed by
[name of New Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
|
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Director
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[
Signature of Director
]
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Director
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This Agreement is accepted as an Assignment
Agreement for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the assignment is confirmed as [ ].
EXHIBIT L
6
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of
receipt of notice of the assignment referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
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[Facility Agent]
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Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[Hermes Agent]
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Executed as a deed by
[Hermes Agent]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[NCL Corporation
Ltd.]
2
[Signed as a deed by
[
NCL Corporation Ltd.
]
,
a
company incorporated in Bermuda, by
[
full name(s)
of person(s) signing
]
,
being [a] person [s] who, in
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2
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To be signed by the Company only if the assignment is pursuant to section 13.01(a)(ii)
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EXHIBIT L
7
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accordance with the laws of that territory, [is] [are]
acting under the authority of the company.
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Signature(s)
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Authorised [signatory] [signatories]]
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EXHIBIT M
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is delivered to you on behalf of the Company (as hereinafter defined) pursuant to Section 9.01(f) of the Credit Agreement, dated as
of [
], 2010 (as amended, supplemented, restated, novated or modified from time to time, the “
Credit Agreement
”), among NCL Corporation Ltd., a Bermuda
company (the “
Company
”), Breakaway One, Ltd., a Bermuda company (the “
Borrower
”), the Lenders from time to time party thereto, Nordea Bank Norge ASA, as Documentation Agent, KfW IPEX-Bank GmbH as Facility Agent,
Collateral Agent and CIRR Agent (in such capacity, the “
CIRR Agent
”), Commerzbank Aktiengesellschaft, as Hermes Agent, and the other parties thereto. Capitalized terms defined in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.
1. I am a duly elected, qualified and acting senior financial officer of the
Company.
2. I have reviewed and am familiar with the contents of this Certificate. I am providing this Certificate solely in
my capacity as an officer of the Company. The matters set forth herein are true to the best of my knowledge after diligent inquiry.
3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and
financial condition of the Company during the accounting period covered by the financial statements true and correct copies of which are attached hereto as ANNEX 1 (the “
Financial Statements
”). The Financial Statements have been
prepared in accordance with the requirements of the Credit Agreement.
4. Attached hereto as ANNEX 2 are the computations
showing (in reasonable detail) compliance with the covenants specified therein. All such computations are true and correct.
[5. On the date hereof, no Default or Event of Default has occurred and is continuing.]
1
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1
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If any Default or Event of Default exists, include a description thereof, specifying the nature and extent thereof (in reasonable detail).
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Exhibit M
Page 2
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the Company this
day of
.
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NCL CORPORATION LTD.
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By
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Name:
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Title:
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ANNEX 1 to
Compliance Certificate
CONSOLIDATED FINANCIAL STATEMENTS
ANNEX 2 to
Compliance Certificate
COMPLIANCE WORKSHEET
The calculations described herein is as of
,
(the “Computation Date”) and pertains to the period from
,
to
,
(the “Test Period”).
Part A. Free Liquidity
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1. Aggregate Cash Balance on the Computation Date.
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$
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_______________
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2. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
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$
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_______________
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3. Item 1
plus
Item 2
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$
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_______________
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4. Is Item 3 equal to or greater than [*] pursuant to Section 10.06 of the Credit
Agreement?
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YES/NO
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Part B. Total Net Funded Debt to
Total Capitalization
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1. Indebtedness for Borrowed Money of the NCLC Group on the Computation Date.
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$
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_______________
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2. The amount of any Indebtedness for Borrowed Money of any person which is not a member of
the NCLC Group but which is guaranteed by a member of the NCLC Group on the Computation Date.
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$
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_______________
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3. Cash Balance on the Computation Date.
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$
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_______________
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4. Item 1
plus
Item 2
minus
Item 3
2
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$
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_______________
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5. Total Capitalization on the Computation Date
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$
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_______________
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2
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Any Commitments under the Credit Agreement and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group which remain
undrawn shall not be counted as cash or indebtedness for the purposes of this calculation.
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Exhibit M
Page 2
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6. Total Net Funded Debt to Total Capitalization Ratio (Item 4:Item 5) on the Computation
Date.
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__________:1.00
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7. The maximum Total Net Funded Debt to Total Capitalization Ratio pursuant to
Section 10.07 of the Credit Agreement:
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[*]
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Part C. Collateral Maintenance
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1. Outstanding principal amount of Loans on the Computation Date.
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$
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_______________
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2. Vessel Value.
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$
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_______________
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3. Minimum Vessel Value for the Vessel permitted pursuant to Section 10.08 of the Credit
Agreement.
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Item 1 multiplied
by [*]
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4. Is Item 2 equal to or greater than Item 3 pursuant to Section 10.08 of the
Credit Agreement?
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YES/NO
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Part D. Consolidated EBITDA to
Consolidated Debt Service
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1. Consolidated Net Income from the Parent’s operations for the Test
Period.
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$
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_______________
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2. Aggregate amounts deducted in determining Consolidated Net Income for the Test Period in
respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for the Test
Period.
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$
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_______________
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3. Item 1
plus
Item 2
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$
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_______________
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4. Consolidated Debt Service for the Test Period.
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$
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_______________
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5. Consolidated EBITDA to Consolidated Debt Service Ratio (Item 3:Item 4) on the Computation
Date.
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:1.00
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6. The minimum Consolidated EBITDA to Consolidated Debt Service Ratio pursuant to
Section 10.09 of the Credit Agreement:
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[*]
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7. Aggregate Cash Balance on the Computation Date.
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$_______________
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Exhibit M
Page 3
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8. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
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$_______________
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9. Item 7
plus
Item 8
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$_______________
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10. Is (x) Item 9 for the NCLC Group equal to or greater than [*] at all times during the period
of four consecutive fiscal quarters ending at the end of the Test Period or (y) Item 5 greater than or equal to Item 6 pursuant to Section 10.09 of the Credit Agreement?
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YES/NO
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EXHIBIT N
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY ONE, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate Collateral Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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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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PRIORITY AND RANKING
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7
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3.
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NOTIFICATIONS
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8
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4.
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RESTRICTIONS ON ENFORCEMENT
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8
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5.
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MANNER OF ENFORCEMENT
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9
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6.
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TURNOVER OF RECEIPTS
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11
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7.
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APPLICATION OF PROCEEDS
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11
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8.
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PRESERVATION
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12
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9.
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CHANGES TO THE PARTIES
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14
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10.
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POWER OF ATTORNEY
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15
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11.
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AMENDMENTS
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15
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12.
|
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THIRD PARTY RIGHTS
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15
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13.
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COUNTERPARTS
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15
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14.
|
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NOTICES
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15
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15.
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PERPETUITY PERIOD
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17
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16.
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GOVERNING LAW
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17
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17.
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ENFORCEMENT
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17
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SCHEDULE 1 ECF SECURITY DOCUMENTS
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19
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SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
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20
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SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
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21
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SCHEDULE 4 ADDRESS DETAILS
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23
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(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated [•] 2010 and made between:
|
(1)
|
KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
|
|
(2)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
|
|
(4)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
|
|
(5)
|
BREAKAWAY ONE, LTD.
(the “
Debtor
”);
|
|
(6)
|
KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
|
|
(7)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
|
NOW THIS DEED WITNESSES
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 1 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
|
|
(a)
|
words denoting the plural number include the singular and vice versa;
|
|
|
(b)
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
|
|
(c)
|
references to Clauses are references to clauses of this Deed;
|
|
|
(d)
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
|
|
(e)
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
(f)
|
references to any party include its successors, transferees and assignees.
|
The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
|
3.1
|
If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
|
|
3.2
|
If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
|
|
4.
|
RESTRICTIONS ON ENFORCEMENT
|
|
4.1
|
Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
|
|
|
(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
|
|
|
(b)
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
|
PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
|
|
(i)
|
filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
|
|
|
(ii)
|
from demanding payment of any of the Term Loan Indebtedness; or
|
|
|
(iii)
|
supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
|
but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
|
4.2
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
|
8
|
4.3
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
|
|
5.1
|
Enforcement Instructions
|
|
|
(a)
|
Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
|
|
|
(b)
|
After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
|
|
|
(c)
|
Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(d)
|
After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(e)
|
Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
|
If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
|
5.4
|
Manner of enforcement
|
If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
|
5.5
|
Exercise of voting rights
|
|
|
(a)
|
Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
|
|
|
(b)
|
The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
|
To the
extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the
Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
|
5.8
|
Certificates in relation to ECF Indebtedness
|
Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
|
5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
|
|
(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
|
|
|
(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
|
7.
|
APPLICATION OF PROCEEDS
|
|
7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
|
|
|
(a)
|
in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
|
|
|
(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
|
|
|
(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
|
|
|
(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
|
|
|
(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
|
|
|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The provisions of this Deed will not be affected by an act, omission, matter or thing which,
but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
15
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D - 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
|
|
|
anne.randewig@commerzbank.com
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
with
copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
16
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of Contracts
”).
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The ECF 1 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of Contracts”
).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of KfW Refund Guarantees”
).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
|
From:
|
[
Acceding Creditor/Agent
]
|
THIS
UNDERTAKING is made on [
date
] by [
insert full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [•] between
KfW IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the Jewel Lenders, Breakaway One, Ltd. as Debtor, KfW
IPEX-Bank GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the
Intercreditor Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In
consideration of the Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes of the Intercreditor Deed, the Acceding
[
Creditor
/ Agent] confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
] and undertakes to perform all the
obligations expressed in the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be bound by all the provisions of the
Intercreditor Deed, as if it had been an original party to the Intercreditor Deed.
This Undertaking and any non-contractual obligations
arising out of or in connection with it are governed by English law.
THIS UNDERTAKING
has been entered into on the date stated above.
Acceding [
Creditor
/ Agent]
[EXECUTED
as a
DEED]
[
insert
full name of Acceding Creditor / Agent
]
By:
Address:
Fax:
21
Accepted by the Collateral Agent
|
|
|
|
|
|
|
for and on behalf of
|
|
KfW IPEX-Bank GmbH
|
Date:
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail: alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia
Wenzel /
Mr
Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail: arne.berglund@nordea.com
|
23
SIGNATORIES
THE ECF FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
24
THE JADE FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE JEWEL FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL ECF LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK GMBH
,
acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL JADE LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA,
acting by
[
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL JEWEL LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE DEBTOR
Signed as a deed on behalf of
BREAKAWAY
ONE,
LTD.
, a company incorporated in
Bermuda, by [
full name(s) of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory,
[is][are] acting under the authority of the
company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE COLLATERAL AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE DELEGATE COLLATERAL AGENT
Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by [
name
of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
EXHIBIT O
Dated [•] 2010
HULL NO. S. 678
FORM OF
ASSIGNMENT OF MANAGEMENT AGREEMENTS
between
BREAKAWAY ONE, LTD.
as Borrower
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
|
|
|
|
2.
|
|
COVENANT TO PAY
|
|
|
4
|
|
|
|
|
|
|
3.
|
|
LEGAL ASSIGNMENT
|
|
|
4
|
|
|
|
|
|
|
4.
|
|
THE CONTRACT
|
|
|
5
|
|
|
|
|
|
|
5.
|
|
CONTINUING SECURITY
|
|
|
6
|
|
|
|
|
|
|
6.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
8
|
|
|
|
|
|
|
7.
|
|
UNDERTAKINGS
|
|
|
10
|
|
|
|
|
|
|
8.
|
|
FURTHER ASSURANCE
|
|
|
10
|
|
|
|
|
|
|
9.
|
|
ENFORCEMENT OF SECURITY
|
|
|
11
|
|
|
|
|
|
|
10.
|
|
RECEIVERS
|
|
|
12
|
|
|
|
|
|
|
11.
|
|
APPLICATION OF PROCEEDS
|
|
|
12
|
|
|
|
|
|
|
12.
|
|
POWER OF ATTORNEY
|
|
|
12
|
|
|
|
|
|
|
13.
|
|
RELEASE OF THE SECURITY
|
|
|
12
|
|
|
|
|
|
|
14.
|
|
PAYMENTS
|
|
|
13
|
|
|
|
|
|
|
15.
|
|
WAIVERS AND REMEDIES
|
|
|
13
|
|
|
|
|
|
|
16.
|
|
ADDITIONAL PROVISIONS
|
|
|
13
|
|
|
|
|
|
|
17.
|
|
ASSIGNMENT
|
|
|
15
|
|
|
|
|
|
|
18.
|
|
NOTICES
|
|
|
15
|
|
|
|
|
|
|
19.
|
|
GOVERNING LAW
|
|
|
16
|
|
|
|
|
|
|
20.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
17
|
|
|
|
|
|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
|
|
18
|
|
|
|
|
|
SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
21
|
|
|
|
|
|
SCHEDULE 3 FORM OF MANAGEMENT AGREEMENT
|
|
|
23
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH,
as collateral agent for and on behalf of the Secured Creditors (the “
Collateral Agent
”, which expression includes any person
which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
|
|
(C)
|
The Borrower and the Collateral Agent intend this Assignment to take effect as a deed.
|
|
(D)
|
The Collateral Agent holds the benefit of this Assignment on trust for itself for the Secured Creditors on the terms of the Credit Agreement and the Security Trust
Deed.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Collateral Agent.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit Agreement.
“
Assigned Rights
” means the Borrower’s rights, title, interest and benefits in, to and in respect of the
Management Agreements.
“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the
date hereof between,
inter alia
, the Parent, the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document
Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of
Default” as defined in the Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or
otherwise, whether actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Management Agreements
” means any agreements substantially in the form of Schedule 3 (
Form of Management Agreement
) or otherwise reasonably acceptable to the Facility Agent (as
modified, supplemented or amended from time to time), entered into by the Borrower with the Manager or such other commercial manager and/or a technical manager with respect to the management of the Vessel, in each case which manager shall be
reasonably acceptable to the Facility Agent (it being understood that NCL (Bahamas) Ltd. is acceptable).
“
Manager
” means the company providing commercial and technical management and crewing services for the Vessel pursuant to
the Management Agreements, which is presently contemplated to be NCL (Bahamas) Ltd., a company organised and existing under the laws of Bermuda.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice of Assignment
) or in such other form as may be approved by the
Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the Borrower and/or
the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the
respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Assignment, pursuant to
any statute, by a court or otherwise) of any of the Assigned Rights.
“
Secured Creditors
” means the Lender
Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other
Obligations.
“
Security
” means the security created by this Assignment.
2
“
Security Period
” means the period beginning on the date of this Assignment
and ending on the date upon which the Collateral Agent is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent obligations for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
3
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
The
Borrower agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Collateral Agent.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured
Obligations.
4
|
3.2
|
Non-Assignable Rights
|
The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to each Manager under each of the Management Agreements as of the date hereof
(if any), a Notice of Assignment and if the Collateral Agent so requests the Borrower shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Management Agreement entered into after the date of this Assignment, the Borrower shall deliver to each Manager, a
Notice of Assignment in respect of such Management Agreement.
|
|
3.4
|
Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after it receives a Notice of Assignment, the Manager shall deliver to the Collateral Agent an Acknowledgment
of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Management Agreements
|
The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
(i)
|
during the continuance of an Event of Default, receive any sum from time to time payable to the Borrower under or in respect of the Management Agreements;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of any Management Agreement other than any waiver, amendment or supplement (i) advised by the
Borrower’s tax counsel, (ii) of a technical nature or (iii) deemed necessary by the parties to the Management Agreement to reflect the prevailing circumstances, provided that in each case, the prior written consent of the Collateral
Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the Borrower to
perform its obligations under the Credit Documents;
|
5
|
|
(iii)
|
terminate, or allow to be terminated, any Management Agreement unless replaced by a Management Agreement or Management Agreements, as the case may be, reasonably
acceptable to the Facility Agent; or
|
|
|
(iv)
|
assign or charge any Management Agreement or any of the Assigned Rights.
|
|
4.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Management Agreements and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with the Management Agreements which are necessary to
preserve, protect and enforce the interests of the Collateral Agent in the Management Agreements.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Management Agreements or any of the Assigned Rights, or following the occurrence and during the continuation of an Event of Default
makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the Collateral
Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
6
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
7
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Borrower acknowledges that the Collateral Agent has entered
into this Assignment in reliance on those representations and warranties.
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreement, as applicable.
8
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Credit Agreement, no person other than the Borrower has any legal or
beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement or this Assignment it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise, the benefit of all or any of
the Assigned Rights.
The terms
of the Management Agreements do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
9
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Borrower
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Borrower shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
The Borrower
shall provide the Collateral Agent with such reports and other information regarding the Management Agreements as the Collateral Agent may from time to time reasonably request.
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Management Agreements in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and
shall not commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Collateral Agent until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Management Agreements to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have
a material adverse effect on the value of such Management Agreement.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider
10
desirable to enable the Collateral Agent to perfect, preserve or protect the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this
Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all such notices and directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times
and in such manner as it thinks fit.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal
in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
11
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Borrower.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
11.
|
APPLICATION OF PROCEEDS
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the
discharge of the Secured Obligations in accordance with the provisions of the Credit Agreement.
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
12
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Borrower shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
13
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be
discharged only to the extent that on the Business Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified
currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified
currency, the Collateral Agent agrees to remit such excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
14
|
17.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit
Agreement.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deed.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
15
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Borrower agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Borrower to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
16
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non- contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower and the Collateral Agent.
17
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [•] (the “
Assignment
”) and made between Breakaway One,
Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and
benefits in, to or in respect of the management agreement dated [•] between the Borrower and you, as manager in relation to the provision of commercial and technical management and crewing services for the passenger cruise ship (the
“
Ship
”) with provisional hull number 678 (the “
Management Agreement
”).
With effect from your receipt of
this notice we hereby give you notice that:
|
(a)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, the Parent, the
Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Collateral Agent, all payments to be made to the Borrower under or arising from the Management Agreement should be made to the Collateral Agent or to its order as it may specify in
writing from time to time;
|
|
(b)
|
following an Event of Default, all remedies of the Borrower provided for in the Management Agreement or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Management Agreement shall be exercisable by the Collateral Agent;
|
18
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Management Agreement are assigned to the Collateral
Agent;
|
|
(e)
|
no waiver or amendment of or supplement to the terms of the Management Agreement may be made other than any waiver, amendment or supplement (i) advised by the
Borrower’s tax counsel, (ii) of a technical nature or (iii) deemed necessary by the parties to the Management Agreement to reflect the prevailing circumstances to reflect the prevailing circumstances, provided that in each case, the
prior written consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely
affects the ability of the Borrower to perform its obligations under the Credit Documents (as defined in the Credit Agreement);
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Management Agreement unless replaced by a Management Agreement or Management Agreements, as the
case may be, reasonably satisfactory to the Facility Agent (as defined in the Credit Agreement);
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Management Agreement except that to the extent
that the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower)
(including, without limitation, making a demand under the Management Agreement) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has
occurred;
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(h)
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the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Management Agreement. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Management Agreement without further authority or enquiry by you from the Borrower; and
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(i)
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the Borrower remains liable to perform all its duties and obligations under the Management Agreement and the Collateral Agent is under no obligation of any kind under
the Management Agreement nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
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You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Management Agreement as it may from
time to time reasonably request and to send copies of any notices issued by you under the Management Agreement which have had or would reasonably be expected to have a material adverse effect on the value of the Management Agreement or the Ship, to
the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon
termination of the Assignment (as notified to you by the Collateral Agent).
19
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
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Yours faithfully
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For and on behalf of
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BREAKAWAY ONE, LTD.
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20
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[To be printed only on copy of the
Notice of Assignment given]
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To:
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KfW IPEX-Bank GmbH as Collateral Agent
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Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that we have not received notice of any previous assignments or charges of or over any of the rights, title, interests and benefits in, to or
in respect of the Management Agreement and that we will comply with the terms of the Notice.
We further agree and confirm that:
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(a)
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if an Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing, we covenant and agree with the Collateral Agent that the Collateral
Agent shall have the right to terminate the Management Agreement, as the Collateral Agent determines in its sole discretion, upon not fewer than three (3) Business Days prior written notice setting forth the effective date of such termination,
without such termination giving rise to any claim by us as Manager, other than for services already rendered by us as Manager as of the effective date of such termination;
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(b)
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with respect to the Ship, we agree that any lien arising in our favour under the Management Agreement is subject and subordinated in all respects to the lien of the
first priority mortgage and the deed of covenants in respect of the Ship granted by the Borrower in favour of the Collateral Agent (the “
Vessel Mortgage
”), and, at the option of the Collateral Agent, foreclosure (or any similar
action taken by the Collateral Agent) under the Vessel Mortgage shall terminate the Management Agreement and such liens and divest us and our submanagers of all right, title and interest in and to the Ship;
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(c)
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we will not enter into any sub-management agreement or contract out our obligations under the Management Agreement to any person without the Collateral Agent’s
prior written consent, unless (i) the sub-manager executes a consent substantially identical to this consent and (ii) the sub-manager is as competent to render management services as we are; and
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21
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(d)
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we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed
thereto in the Notice or the Assignment, as applicable) with respect to the Management Agreement.
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Yours faithfully
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For and on behalf of
[Manager]
as
Manager
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By:
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Date:
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22
SCHEDULE 3
FORM OF MANAGEMENT AGREEMENT
[TO BE INSERTED]
23
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SIGNATORIES
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Signed as a deed on behalf of
BREAKAWAY ONE, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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24
EXHIBIT P
Dated [•] 2010
HULL NO. S. 678
FORM OF ECF 1 SECURITY TRUST DEED
between
KFW
IPEX-BANK GMBH
as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate Collateral Agent
KFW IPEX-BANK GMBH
as Facility Agent
BREAKAWAY ONE, LTD.
as Company
NCL CORPORATION LTD.
as Parent
and
OTHERS
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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DEFINITIONS AND INTERPRETATION
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1
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2.
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TRUSTEE FOR THE SECURED CREDITORS
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5
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3.
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APPLICATION OF PROCEEDS
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6
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4.
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SECURED CREDITORS’ UNDERTAKINGS
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8
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5.
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CREDIT PARTIES’ UNDERTAKINGS
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9
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6.
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AGENT’S RIGHTS AND DUTIES
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10
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7.
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APPOINTMENT AND REMOVAL OF AGENTS
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17
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8.
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CHANGE OF PARTIES
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19
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9.
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FEES AND EXPENSES
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20
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10.
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AMENDMENTS AND RELEASES
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21
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11.
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TERMINATION OF THE TRUSTS
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22
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12.
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REMEDIES AND WAIVERS
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22
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13.
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ADDITIONAL PROVISIONS
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22
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14.
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NOTICES
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24
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15.
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GOVERNING LAW AND JURISDICTION
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26
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16.
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COUNTERPARTS AND EFFECTIVENESS
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26
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SCHEDULE 1 ORIGINAL SECURED CREDITORS
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28
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SCHEDULE 2 FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
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29
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THIS DEED
is made on [
•
] 2010
BETWEEN
:
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(1)
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BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Company
”);
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(2)
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NCL CORPORATION LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Parent
” and together with the Company, the “
Credit Parties
”);
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(3)
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The financial institutions listed in Schedule 1 as Secured Creditors (together with the Collateral Agent and the Delegate Collateral Agent, the “
Original
Secured Creditors
”);
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(4)
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KFW IPEX-BANK GMBH
as facility agent for the Lender Creditors (the “
Facility Agent
”);
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(5)
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KFW IPEX-BANK GMBH
as trustee for the Secured Creditors (the “
Collateral Agent
”, which expression includes any additional or successor
Collateral Agent appointed pursuant to and in accordance with the terms of this Deed); and
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(6)
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as trustee for the Secured Creditors (the “
Delegate Collateral Agent
”, which expression includes
any additional or successor Delegate Collateral Agent appointed pursuant to and in accordance with the terms of this Deed).
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RECITALS:
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(A)
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The Lenders are willing to make certain credit facilities available to the Company on the terms and subject to the conditions set out in the Credit Agreement, one of
those conditions being that the Company enters into this Deed.
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(B)
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The Collateral Agent holds the Transaction Security (excluding the Vessel 1 Assignment of KfW Refund Guarantees) on trust for itself and the other Secured Creditors on
the terms of this Deed.
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(C)
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The Delegate Collateral Agent holds the Vessel 1 Assignment of KfW Refund Guarantees on trust for itself and the other Secured Creditors on the terms of this Deed.
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IT IS AGREED
as follows:
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1.
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DEFINITIONS AND INTERPRETATION
|
In this Deed
the following terms have the meanings given to them in this Clause 1.1.
“
Agents
” means the Collateral Agent
and the Delegate Collateral Agent.
“
Credit Agreement
” means the €529,846,154 credit agreement made
between the Parent, the Company, the Lenders and others dated [•].
“
Credit Document Obligations
” has the
meaning given in the Credit Agreement.
“
Delegate
” means any delegate, agent or attorney appointed by the
Collateral Agent, pursuant to and in accordance with the terms of this Deed.
“
Discharge Date
” means the date
on which all the Secured Obligations have been fully discharged and none of the Lender Creditors is under any obligation (whether actual or contingent, other than (i) contingent obligations for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) to make advances or provide other financial accommodation to any of the Credit Parties under the Credit
Documents.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other
Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each Lender
or affiliate thereof that may at any time and from time to time enter into one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 8.3 (
New Hedging Creditor
), even if the respective Lender subsequently
ceases to be a Lender under the Credit Agreement for any reason, together with such Lender’s or affiliate’s successors and assigns, if any.
“
ECF Interest Rate Protection Agreement
” means Interest Rate Protection Agreement as defined in the Credit Agreement.
“
ECF Loan Collateral
” means the Collateral as defined in the Credit Agreement.
“
ECF Other Hedging Agreement
” means Other Hedging Agreement as defined in the Credit Agreement.
“
Other Obligations
” has the meaning given in the Credit Agreement.
“
Party
” means a party to this Deed.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Deed or any statute, by a court or otherwise) of all or any of the Trust Property and the
Trust Property Delegated and shall, where permitted by law, include an administrative receiver.
“
Secured
Creditors
” means (a) the Original Secured Creditors, (b) any Receiver or Delegate, (c) any additional or successor Agents appointed pursuant to and in accordance with the terms of this Deed, (d) any ECF Hedging Creditor
that has acceded to this Deed by delivery of a Secured Creditor Accession Undertaking to the Collateral Agent, (e) any successor Facility Agent or permitted assignee, permitted transferee of a Lender or permitted transferee of a ECF Hedging
Creditor that has acceded to this Deed by (i) delivery of a Secured Creditor Accession Undertaking to the Collateral Agent or (ii) delivery of a Transfer Certificate or Assignment Agreement to the Facility Agent and (f) any permitted
assignee of a Lender by way of Security, including without limitation, KfW in connection with the KfW Refinancing.
2
“
Secured Creditor Accession Undertaking
” means an undertaking substantially
in the form set out in Schedule 2 (
Form of Secured Creditor Accession Undertaking
) of this Deed.
“
Secured
Obligations
” means the Credit Document Obligations and the Other Obligations.
“
Security
” means a
mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Shared
Security Documents.
“
Shared Security Documents
” means:
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(a)
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the Vessel 1 Assignment of Contracts; and
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(b)
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the Vessel 1 Assignment of KfW Refund Guarantees.
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“
Transaction Security
” means the security created or expressed to be created in favour of the relevant Agent pursuant to the Vessel 1 Assignment of Contracts, the Vessel 1 Assignment of
KfW Refund Guarantees, the Assignment of Management Agreement, the Assignments of Earnings and the Assignments of Insurances and any other agreement which is governed by the laws of England and Wales and which creates or purports to create Security
in favour of the Secured Creditors.
“
Trust Property
” means all rights, interests, benefits and other property
comprised in the Transaction Security (excluding the Vessel 1 Assignment of KfW Refund Guarantees) and the proceeds thereof including without limitation:
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(a)
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any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Collateral Agent under, pursuant to or in connection with this Deed or any Credit Document to which the Collateral Agent is a party;
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(b)
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any representation, obligation, covenant, warranty or other contractual provision in favour of the Collateral Agent (other than any made or granted solely for its own
benefit) made or granted in or pursuant to any of the Credit Documents to which the Collateral Agent is a party;
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(c)
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any sum which is received or recovered by the Collateral Agent under, pursuant to or in connection with any of the Credit Documents or the exercise of any of the
Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Collateral Agent upon trust on the terms of this Deed or any of the Credit Documents to
which the Collateral Agent is a party; and
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3
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(d)
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all income and other sums at any time received or receivable by the Collateral Agent in respect of the other Trust Property or any part thereof.
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“
Trust Property Delegated
” means all rights, interests, benefits and other property comprised
in the Vessel 1 Assignment of KfW Refund Guarantees and the proceeds thereof including without limitation:
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(a)
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any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Delegate Collateral Agent under, pursuant to or in connection with this Deed or the Vessel 1 Assignment of KfW Refund Guarantees;
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(b)
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any representation, obligation, covenant, warranty or other contractual provision in favour of the Delegate Collateral Agent (other than any made or granted solely for
its own benefit) made or granted in or pursuant to any of the Vessel 1 Assignment of KfW Refund Guarantees;
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(c)
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any sum which is received or recovered by the Delegate Collateral Agent under, pursuant to or in connection with any of the Vessel 1 Assignment of KfW Refund Guarantees
or the exercise of any of the Delegate Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Delegate Collateral Agent upon trust on the terms
of this Deed or any the Vessel 1 Assignment of KfW Refund Guarantees; and
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(d)
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all income and other sums at any time received or receivable by the Delegate Collateral Agent in respect of the other Trust Property Delegated or any part thereof.
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“
Trustee Acts
” means the Trustee Act 1925 and the Trustee Act 2000.
“
Vessel 1 Assignment of Contracts
” means the assignment of contracts dated on or about the date of this Deed and made
between the Company and the Collateral Agent.
“
Vessel 1 Assignment of KfW Refund Guarantees
” means the
assignment of refund guarantees dated on or about the date of this Deed and made between the Company and the Delegate Collateral Agent relating to certain Refund Guarantees issued by KfW IPEX-Bank GmbH.
Unless
this Deed provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Deed.
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1.3
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References to Agreements
|
Unless otherwise stated, any reference in this Deed to any agreement or document (including any reference to this Deed or any other Credit
Document or to any agreement or document entered into pursuant to or in accordance with such agreement or document) shall be construed as a reference to:
4
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(a)
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such agreement or document as amended, restated, varied, novated or supplemented from time to time; and
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(b)
|
any agreement or document whereby such agreement or document is so amended, restated, varied, novated or supplemented or which is entered into pursuant to or in
accordance with such agreement or document.
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A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Deed to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
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(a)
|
A person which is not a party to this Deed (a “
third party
”) shall have no rights to enforce the provisions of this Deed save for those rights it would
have had if the Contracts (Rights of Third Parties) Act 1999 had not come into effect provided that each of Clause 5.1 (
Credit Parties’ Indemnity to Agents
), Clause 9.1 (
Transaction and Enforcement Expenses
) and Clause 13.3
(
Currency Indemnity
) shall be enforceable by any third party referred to in such clause as if such third party were a party to this Deed.
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(b)
|
The Parties to this Deed may vary or rescind this Deed without the consent of any third party.
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1.7
|
Clause and Schedule Headings
|
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(a)
|
Unless otherwise stated, any reference in this Deed to a Clause or a Schedule shall be construed as a reference to a clause of or a schedule to this Deed.
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(b)
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Deed.
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2.
|
TRUSTEE FOR THE SECURED CREDITORS
|
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2.1
|
Declaration of Trust by Collateral Agent
|
To the extent the Trust Property is not transferred, charged or granted to the Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of Clause 2.3 (
Non-Trust
Jurisdictions
), the Collateral Agent declares itself trustee of the Trust Property to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the terms and subject to the conditions set out in this
Deed.
5
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2.2
|
Declaration of Trust by Delegate Collateral Agent
|
To the extent the Trust Property Delegated is not transferred, charged or granted to the Delegate Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of
Clause 2.3 (
Non-Trust Jurisdictions
), the Delegate Collateral Agent declares itself trustee of the Trust Property Delegated to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the
terms and subject to the conditions set out in this Deed.
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2.3
|
Non-Trust Jurisdictions
|
It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed
to be created by this Deed, the relationship of the Secured Creditors to the Agents shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Deed shall have
full force and effect between the Parties.
Each
Credit Party hereby covenants with the Agents as trustees for the Secured Creditors that on demand by either of the Agents such Credit Party shall discharge all obligations which are then due and payable and which such Credit Party may at any time
owe to the Agents (whether for its own account or as trustee for the Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they
act) under or pursuant to the Credit Documents including any liability in respect of any further advances made under the Credit Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or as surety or in some other capacity) and each Credit Party shall pay to the Agents when due and payable every sum at any time owing, due or incurred by such Credit Party to the Agents (whether for its own account or as trustee for the
Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they act) in respect of any such liabilities.
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3.
|
APPLICATION OF PROCEEDS
|
All
moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral Agent pursuant to the Vessel 1 Assignment of KfW Refund Guarantees) shall be applied by the
Collateral Agent (a) with respect to the Shared Security only (to the extent that the Intercreditor Agreement is operative), in accordance with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Intercreditor
Agreement and (b) with respect to the Shared Security (to the extent that the Intercreditor Agreement is inoperative) and any other Security to which this Deed relates, in accordance with the order of priority set out in Section 4.05
(
Application of Proceeds
) of the Credit Agreement.
6
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3.2
|
Investment of Proceeds
|
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(a)
|
Pending its distribution under Clause 3.1 (
Order of Application
) and without responsibility for any loss or any reduction in return which may result from its so
doing, the Collateral Agent may credit any sum received, recovered or held by it in respect of the Trust Property and/or the Trust Property Delegated to such suspense or other account as the Collateral Agent thinks fit or invest or place on deposit
such sum in the name of or under the control of the Collateral Agent in any investment for the time being authorised by English law for the investment by trustees of trust moneys or with such bank or financial institution (including the Collateral
Agent) as the Collateral Agent may think fit.
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(b)
|
The Collateral Agent may at any time in its absolute discretion vary, exchange, transfer or transpose any such investments or deposits for or into other such
investments or deposits without being under any obligation or duty to diversify the same. Any investment made by the Collateral Agent may, at its discretion, be made or retained in the name of a nominee.
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In
order to apply any sum held or received by the Collateral Agent or a Receiver in or towards payment of the Secured Obligations, the Collateral Agent or such Receiver may purchase an amount in another currency and the rate of exchange to be used
shall be that at which, at such time as it considers appropriate, the Collateral Agent or such Receiver is able to effect such purchase.
The
Collateral Agent shall be entitled to set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any
distribution or payment made by it under this Deed, and to pay all taxes which may be assessed against it in respect of any of the Trust Property or Trust Property Delegated, as applicable, or as a consequence of performing its duties, or by virtue
of its acting in its capacity as Collateral Agent under any of the Credit Documents or otherwise (other than in connection with its remuneration for performing its duties under this Deed).
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3.5
|
Discharge of Secured Obligations
|
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(a)
|
Any payment to be made in respect of the Secured Obligations by the Collateral Agent pursuant to (i) paragraph (c) of Clause 7.1 (
Application of
Proceeds
) of the Intercreditor Agreement or (ii) paragraph (ii) of Section 4.05 (
Application of Proceeds
) of the Credit Agreement shall be made to the Facility Agent (on behalf of the Lenders and the other Secured Creditors
(to the extent applicable)) and any payment so made shall to the extent of such payment be a good discharge to the Agents.
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(b)
|
The Credit Parties hereby agree that any sums due in respect of the Secured Obligations to any Secured Creditor shall only be discharged to the extent that such Secured
Creditor has received such sums in the currency in which such sums are due under the Credit Documents.
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7
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(a)
|
If any Secured Creditor has received an amount as a result of the enforcement of the Transaction Security and the Collateral Agent and/or the Delegate Collateral Agent
is subsequently required to pay an amount equal to that amount (a “
Clawback Amount
”) to a liquidator (or any other party) whether pursuant to a court order or otherwise such Secured Creditor will promptly on the request of the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) pay an amount equal to such Clawback Amount to the Collateral Agent and/or the Delegate Collateral Agent (as applicable) for payment to the liquidator (or such other party).
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(b)
|
Each Secured Creditor that has received a Clawback Amount shall indemnify the relevant Agent against any and all costs, claims, losses, expenses (including legal fees)
and liabilities together with any VAT thereon which the Collateral Agent and/or the Delegate Collateral Agent (as applicable) may incur with respect to that Clawback Amount otherwise than by reason of the Agent’s own gross negligence or wilful
misconduct.
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4.
|
SECURED CREDITORS’ UNDERTAKINGS
|
Each Secured Creditor gives the undertakings set out in this Clause 4 to each of the other Secured Creditors and acknowledges that the Agents entered into this Deed in reliance on those undertakings.
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4.1
|
Secured Creditors’ Information
|
The Secured Creditors shall furnish to the Facility Agent, for transmission to the Collateral Agent and/or the Delegate Collateral Agent, such information as the Collateral Agent and/or the Delegate
Collateral Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Collateral Agent and/or the Delegate Collateral Agent to perform its functions as trustee.
Each
of the Collateral Agent and the Delegate Collateral Agent alone, in their respective capacities, to the exclusion of the Secured Creditors, shall have power to enforce or have recourse to the Transaction Security and to exercise its rights and
powers pursuant to the Credit Documents.
Without prejudice to any of the provisions of any other Credit Document and to the extent that the Company does not do so on demand or is
not obliged to do so, each Secured Creditor that is a Lender hereby severally agrees to indemnify, rateably in accordance with such Lender’s Commitment, the Collateral Agent and/or the Delegate Collateral Agent (as applicable) (and every
Receiver and Delegate) on demand from and against any action, charge, claim, cost, damage, demand, expense (including legal fees), liability or loss which may be brought, made or preferred
8
against or suffered, sustained or incurred by the Collateral Agent and/or the Delegate Collateral Agent (as applicable) in complying with any instructions from any of the Secured Creditors or, in
the case of the Delegate Collateral Agent, the Collateral Agent or otherwise sustained or incurred by the Collateral Agent and/or the Delegate Collateral Agent (as applicable) or any Receiver or Delegate in connection with this Deed or any Credit
Document except to the extent that the liability or loss arises directly from the Collateral Agent and/or the Delegate Collateral Agent (as applicable)’s (or, as the case may be, the Receiver’s or the Delegate’s) gross negligence or
wilful misconduct.
|
4.4
|
Assignments and Transfers
|
Each Secured Creditor agrees with the Agents that it shall not assign or transfer any of its rights, benefits and/or obligations under the
Credit Agreement unless the person to whom such assignment or transfer is made shall have acceded to this Deed by the delivery to the Agents of a duly completed Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement so
as to ensure that such person shall be bound by the terms and conditions of this Deed as a Secured Creditor. For the avoidance of doubt, this provision shall not apply to a permitted assignment by way of security including, without limitation,
pursuant to the KfW Refinancing.
|
5.
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
5.1
|
Credit Parties’ Indemnity to Agents
|
The Credit Parties shall jointly and severally indemnify and hold harmless the Collateral Agent and the Delegate Collateral Agent and every Receiver and Delegate (“
indemnified parties
”)
on demand from and against any and all costs, claims, losses, expenses (including legal fees) and liabilities (together with any applicable VAT), incurred by any of them in relation to or arising out of:
|
|
(a)
|
the preservation, exercise or enforcement of the Transaction Security;
|
|
|
(b)
|
the exercise of any of the rights, powers, discretions and remedies vested in any of the indemnified parties by the Credit Documents or by law;
|
|
|
(c)
|
any default by any Credit Party in the performance of any of the obligations expressed to be assumed by it in the Credit Documents; or
|
|
|
(d)
|
otherwise in relation to any of the Transaction Security or the performance of the terms of this Deed.
|
The Collateral Agent and the Delegate Collateral Agent may, in priority to any payment to the Secured Creditors and on its own behalf or
on behalf of the other indemnified parties, indemnify itself or such other indemnified parties out of the Trust Property and Trust Property Delegated respectively and shall have a lien on the Trust Property and Trust Property Delegated respectively
for all moneys payable under this Clause 5.1.
9
To the
extent that a Secured Creditor is required to indemnify the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
) as a result of any action which a Credit Party is required to take but does not,
the relevant Credit Party agrees to indemnify each such Secured Creditor on demand against any amount it has paid to the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
).
|
5.3
|
Credit Parties’ Waiver
|
Each of the Credit Parties hereby unconditionally waives, to the extent permitted under applicable law any and all rights it may have to require that the Transaction Security be enforced in any particular
order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security, which is capable of being applied in or towards discharge of any of the Secured
Obligations is so applied.
|
5.4
|
Sums Received by Credit Parties
|
If any of the Credit Parties receives any sum which, pursuant to any of the Credit Documents, should have been paid to the Collateral Agent and/or the Delegate Collateral Agent, that sum shall be held by
that Credit Party for and to the order of the Secured Creditors and shall as soon as practicable be paid to the Collateral Agent for application in accordance with Clause 3.1 (
Order of Application
)).
|
6.
|
AGENT’S RIGHTS AND DUTIES
|
|
6.1
|
Powers and Remuneration
|
|
|
(a)
|
The Agents shall have such rights, powers, authorities and discretions as are (i) conferred on trustees by the Trustee Acts and (ii) by way of supplement to
the Trustee Acts as provided for in this Deed and the Credit Documents.
|
|
|
(b)
|
Between itself and the other Parties, the Collateral Agent shall have full power to determine all questions and doubts arising in relation to any of the provisions of
this Deed or any Credit Document and any such determination shall in the absence of manifest error, be conclusive and shall bind the Agents and the other Parties.
|
|
|
(c)
|
The Agents shall be entitled to such remuneration as it may from time to time agree with the Company with the approval of the Facility Agent.
|
|
6.2
|
Instructions for Agents to Act
|
The Agents shall:
|
|
(a)
|
be entitled, in their absolute discretion, to refrain from taking any (or any further) action or exercising any of the Agents’ rights under or in respect of this
Deed or any Credit Document until it has received instructions from the Facility Agent, as to whether (and/or the way in which) such action, right, power, authority or discretion is to be taken or exercised;
|
10
|
|
(b)
|
except as otherwise provided in this Deed, act in accordance with any instructions given to it by the Facility Agent and shall be entitled to assume that (i) any
instructions received by it from the Facility Agent are duly given by the Facility Agent itself or on behalf of the requisite Lenders and/or other Secured Creditors (if applicable), (ii) all applicable conditions under the Credit Documents for
taking any action it is directed to take have been satisfied and (iii) unless it has received actual notice of their revocation, that any instructions or directions given by the Facility Agent have not been revoked;
|
|
|
(c)
|
be entitled to request instructions or clarification from the Facility Agent as to whether, and in what manner, it should exercise or refrain from exercising its
rights, powers and discretions under this Deed and the Agents may refrain from acting unless and until it has received such instructions or clarification;
|
|
|
(d)
|
be entitled to refrain from acting in accordance with the instructions of the Facility Agent or any other person (including bringing any legal action or proceeding
arising out of or in connection with the Credit Documents) until it has received such indemnification and/or security as it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, expenses, losses
and liabilities which it may incur in taking such action or bringing such legal action or proceedings; and
|
|
|
(e)
|
be entitled to carry out all dealings with the Lenders and/or other Secured Creditors (if applicable) through the Facility Agent and may give to the Facility Agent any
notice or other communication required to be given by the Agents to the Lenders and/or other Secured Creditors (if applicable).
|
|
6.3
|
Action to Protect or Enforce Transaction Security
|
Subject to the provisions of this Clause 6:
|
|
(a)
|
the Agents may, in the absence of any instructions from the Facility Agent to the contrary, take such action in the exercise of any of its duties under the Credit
Documents and this Deed which in its absolute discretion it considers appropriate; and
|
|
|
(b)
|
at any time after receipt by the Agents of notice from the Facility Agent informing the Agents that the Transaction Security has become enforceable and directing the
Agents to exercise all or any of its rights, remedies, powers or discretions under any of the Credit Documents or this Deed, the Agents shall take such action as in its absolute discretion it thinks fit to enforce the Transaction Security.
|
|
6.4
|
Agents’ Rights and Discretions
|
The Agents may:
|
|
(i)
|
any communication, certificate, legal opinion or other document believed by it to be genuine and correct and to have been signed by, or with the authority of, the
proper person;
|
11
|
|
(ii)
|
any statement made by a director, officer, partner or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within
his power to verify; and
|
|
|
(iii)
|
a certificate signed by any one or more persons which, or each of which, is believed by it to be a director or other duly authorised officer of the relevant Party to
the effect that any particular dealing, transaction, step or thing is, in the opinion of the person so certifying, suitable or expedient or as to any other fact or matter upon which the Agents may require to be satisfied and shall not be responsible
for any loss that may be occasioned by its relying on any such certificate;
|
|
|
(b)
|
obtain and pay for such legal or other expert advice or services as it may consider necessary or desirable;
|
|
|
(c)
|
retain for its own benefit, without liability to account to any other person, any fee or other sum received by it for its own account;
|
|
|
(d)
|
in the case of the Collateral Agent only, exercise any of its rights, powers and discretions and perform any of its obligations under this Deed or any of the Credit
Documents through its employees or through paid or unpaid agents, which may be corporations, partnerships or individuals (whether or not lawyers or other professional persons). Any such agent shall be responsible for its own acts and omissions and
subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be responsible for any misconduct or omission on the part of, or be bound to supervise the proceedings or acts of, any such employee or agent (and any such agent
which is engaged in any profession or business shall be entitled to charge and be paid all usual fees, expenses and other charges for its services);
|
|
|
(e)
|
in the case of the Collateral Agent only, at any time and from time to time delegate, whether by power of attorney or otherwise and upon such terms and conditions
(including the power to sub-delegate with the consent of the Collateral Agent) as the Collateral Agent may think fit, to any persons all or any of its rights, powers and discretions under this Deed or under any of the Credit Documents. Such delegate
or sub-delegate shall be responsible for its own acts and omissions and subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be in any way liable or responsible to any person for any loss or damage arising from any
act, default, omission or misconduct on the part of any such delegate or sub-delegate. Notwithstanding the above and for the avoidance of doubt, the Collateral Agent shall not be responsible for any acts or omissions, including, without limitation,
any acts or omissions caused by the gross negligence or wilful misconduct of the Delegate Collateral Agent;
|
|
|
(f)
|
together with every Receiver, Delegate or other person appointed under this Deed or any of the Credit Documents, indemnify themselves out of the Trust Property and the
Trust Property Delegated against all proceedings, claims and demands which may be made or taken against it and all costs, charges, damages, expenses and liabilities which it may suffer or incur unless suffered or incurred by reason of its own gross
negligence or wilful misconduct; and
|
12
|
|
(g)
|
unless it has, in its capacity as trustee for the Secured Creditors, received actual notice to the contrary, assume that (i) no Event of Default has occurred and
no Credit Party is in breach of or default under its obligations under any of the Credit Documents and (ii) any right, power, authority or discretion vested by any Credit Document in any person has not been exercised.
|
The Agents shall promptly inform the Facility Agent (and in the case of the Delegate Collateral Agent, inform the Collateral Agent) of:
|
|
(a)
|
the contents of any written notice or document received by it in its capacity as Collateral Agent and Delegate Collateral Agent from any Credit Party under any Credit
Document; and
|
|
|
(b)
|
the occurrence of any Event of Default or any default by a Credit Party in the due performance of or compliance with its obligations under any Credit Document of which
the Collateral Agent or Delegate Collateral Agent has received written notice from any other Party.
|
Notwithstanding anything to the contrary expressed or implied in any Credit Document, the Agents shall not:
|
|
(a)
|
be liable to anyone where it has acted reasonably and in good faith on the opinion or advice of or any information obtained from any lawyer, accountant, architect,
engineer, surveyor, broker, consultant, valuer or other expert (including any auditor), whether obtained by the Agents or otherwise whether or not the expert’s liability in respect thereof is limited by a monetary cap or otherwise and whether
or not any such opinion, advice or information contains some error or is not authentic;
|
|
|
(b)
|
be obliged to monitor or enquire as to whether or not an Event of Default has occurred and will not be deemed to have knowledge of the occurrence of an Event Default
unless it has actual knowledge or express notice thereof;
|
|
|
(c)
|
have any duty to (i) ensure that any payment or other financial benefit in respect of any of the Trust Property or the Trust Property Delegated is duly and
punctually paid, received or collected as and when the same becomes due and payable or (ii) to procure that the correct amounts (if any) are paid or received or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys
or other property paid, distributed, accrued or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise on, or in respect of or in substitution for any of the Trust Property or the Trust
Property Delegated;
|
|
|
(d)
|
unless required by law or ordered so to do by a court of competent jurisdiction, be required to (i) disclose to any Secured Creditor any credit or
other information (other than information in the Agents’ possession specifically concerning the Credit Documents) with respect to the financial
|
13
|
|
condition or affairs of any member of the Group or any of their related entities whether coming into its or any of its affiliates possession before or on the entry into this Deed or at any time
thereafter or (ii) request any certificates or other documents from any member of the Group unless specifically requested to do so by the Facility Agent in accordance with this Deed or any of the Credit Documents;
|
|
|
(e)
|
be bound to account to any other Secured Creditor for any sum or the profit element of any sum received by it for its own account;
|
|
|
(f)
|
be bound to disclose to any other person (including any Secured Creditor) (i) any confidential information or (ii) any other information if disclosure would
or might in its reasonable opinion constitute a breach of any law or be a breach of fiduciary duty;
|
|
|
(g)
|
be liable to any of the Secured Creditors for any action taken or omitted to be taken under or in connection with any of the Credit Documents unless caused by its
fraud, gross negligence or wilful misconduct;
|
|
|
(h)
|
be under any obligations other than those which are specifically provided for in the Credit Documents to which it is a party;
|
|
|
(i)
|
have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Credit Party; or
|
|
|
(j)
|
be obliged to take any action in relation to enforcing or perfecting any charge over any shares in a company registered or incorporated with unlimited liability.
|
|
6.7
|
Responsibility of Secured Creditors
|
It is understood and agreed by each Secured Creditor that at all times that Secured Creditor has itself been, and will continue to be, solely responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the Credit Documents including but not limited to:
|
|
(a)
|
the financial condition, creditworthiness, condition, affairs, status and nature of each of the Credit Parties;
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy and enforceability of each of the Credit Documents and the Transaction Security and any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(c)
|
whether that Secured Creditor has recourse, and the nature and extent of that recourse, against any Credit Party or any other person or any of their respective assets
under or in connection with the Credit Documents or the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
14
|
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by any person in connection with the Credit Documents or the transactions contemplated therein or
any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents; and
|
|
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Trust Property or the Trust Property Delegated, the priority of any of the
Transaction Security or the existence of any other Security affecting the Trust Property or the Trust Property Delegated,
|
and each Secured Creditor warrants to the Agents that it has not relied on and will not at any time rely on the Agents in respect of any of these matters.
|
6.8
|
No Responsibility to Perfect Security
|
The Agents shall not be liable for any omission or defect in, or any failure to preserve or perfect any or all of the Transaction Security including, without limitation, any failure to:
|
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Credit Party to any of the Trust Property or the Trust
Property Delegated;
|
|
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Credit
Documents or the Transaction Security;
|
|
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of any of the Credit Documents or of the Transaction Security;
|
|
|
(d)
|
take, or to require any of the Credit Parties to take, any steps to perfect its title to any of the Trust Property or the Trust Property Delegated or to render the
Transaction effective or to secure the creation of any ancillary security under the laws of any jurisdiction; or
|
|
|
(e)
|
require any further assurances in relation to any of the Transaction Security.
|
The Agents
shall not be under any obligation to insure any of the Trust Property or the Trust Property Delegated, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Credit
Documents. The Agents shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. Where the Agents are named on any insurance policy as an insured party, it shall not be
responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless any Secured
Creditor shall have requested it to do so in writing and the Agents shall have failed to do so within 14 days after receipt of that request.
15
|
|
(a)
|
Each of the Agents shall be at liberty to place (at the cost of the Credit Parties) any of the Credit Documents and any title deeds or other documents relating to the
Transaction Security in any safe custody selected by the Agents or with any financial institution, any company whose business includes the safe custody of documents or any firm of lawyers of good repute and the Agents shall not be responsible for,
or required to insure against, any loss incurred in connection with that deposit.
|
|
|
(b)
|
Each of the Agents may in its absolute discretion make any such arrangements as it thinks fit for allowing any Credit Party or its lawyers or auditors or other advisers
access to or possession of any title deeds and other documents relating to the Transaction Security.
|
|
|
(c)
|
The Agents shall not be responsible for any loss which may result arising out of any deposit, access, possession or other matter provided for in this Clause 6.10.
|
Each
of the Agents shall be entitled to accept without enquiry, and shall not be obliged to investigate, such evidence of right and title as any Credit Party may have to any of the Trust Property or the Trust Property Delegated and shall not be liable
for or bound to require any Credit Party to remedy any defect in its right or title.
|
6.12
|
Refrain from Illegality
|
Each of the Agents may refrain from doing anything which in its opinion would or might be contrary to any law of any jurisdiction or any
directive or regulation binding on it which would or might otherwise render it liable to any person, and the Agents may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
|
6.13
|
Business with the Credit Parties
|
Each of the Agents may accept deposits from, lend money to or provide advisory or other services to and generally engage in any kind of banking or other business with any of the Credit Parties whether or
not it may or does lead to a conflict with the interests of any of the Secured Creditors and may do so without any obligation to account to or disclose any such arrangements to any person.
|
6.14
|
Agent Division Separate
|
In acting as trustee for the Secured Creditors, each of the Agents shall be regarded as acting through its trustee division which shall be
treated as a separate entity from any of its other divisions or departments and any information received by any other division or department of the relevant Agent may be treated as confidential and shall not be regarded as having been given to the
relevant Agent’s trustee division.
16
|
6.15
|
Exclusion of Liability
|
Neither the Agents nor any of their officers, employees or agents makes, or shall at any time be deemed to have made any representation or
warranty (express or implied) with regard to, nor shall it be responsible or liable to any person for:
|
|
(a)
|
the adequacy, accuracy or completeness of any representation, warranty, statement or information contained in this Deed or any Credit Document, notice, report or other
document, statement or information circulated, delivered or made to any Secured Creditor whether orally or otherwise and whether before, on or after the date of this Deed;
|
|
|
(b)
|
the execution, delivery, validity, legality, priority, ranking, adequacy, effectiveness, performance, enforceability or admissibility in evidence of this Deed or any
Credit Document or any other document referred to in paragraph (a) above or of any Transaction Security created thereby or any obligations imposed thereby or assumed thereunder or any other document, agreement or arrangement entered into, made
or executed in anticipation of, pursuant to or in connection therewith;
|
|
|
(c)
|
anything done or not done by it or any of them under or in connection with this Deed or the Credit Documents;
|
|
|
(d)
|
any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Credit Documents or the
Transaction Security or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise;
|
|
|
(e)
|
the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Credit Documents, the Transaction
Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection therewith; or
|
|
|
(f)
|
any shortfall which arises on the enforcement of the Transaction Security,
|
and each of the Secured Creditors agrees that it will not take any proceedings or assert or seek to assert against any officer, employee or agent of the Agents any claim it might have against any of them
in respect of the matters referred to in this Clause 6.15.
|
7.
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
7.1
|
Appointment of Additional Agents
|
|
|
(a)
|
The Collateral Agent shall, at any time and for any purpose or reason whatsoever, have the power to appoint any person to act either as a new or additional trustee, or
as co-trustee jointly with the Collateral Agent, with (subject to the provisions of this Deed) such of the Collateral Agent’s rights (including the right to reasonable remuneration and indemnity but not exceeding those conferred on the
Collateral Agent by this Deed), duties and obligations as are vested in the Collateral Agent by this Deed or any Credit Document as shall be conferred or imposed on such person by the instrument of such co-trustee’s appointment.
|
17
|
|
(b)
|
Any such appointment by the Collateral Agent shall be reasonably acceptable to the Company; provided that the Company’s consent shall not be required pursuant to
this clause (b) if an Event of Default exists at the time of the appointment of the new or additional or co-trustee acting jointly with the Agents.
|
|
|
(c)
|
The Collateral Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral
Agent shall have exercised reasonable care in the selection of such person.
|
|
|
(d)
|
So long as it continues to be a trustee under this Deed, the Collateral Agent shall have power to remove any such new or additional trustee or co-Collateral Agents with
or without cause.
|
|
|
(e)
|
The remuneration the Collateral Agent may pay to any such person, and any costs and expenses incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Deed, be treated as costs and expenses incurred by the Collateral Agent.
|
The
Collateral Agent may at any time delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Credit Documents and such delegation may be made upon such terms
and conditions (including the power to sub-delegate) and subject to such restrictions as the Collateral Agent may think fit. Such delegate or sub-delegate shall be responsible for its own acts and omissions and the Agents shall not be bound to
supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral Agent shall have exercised reasonable care in the selection of such person.
|
7.3
|
Retirement or Removal of Agents
|
|
|
(a)
|
The Collateral Agent may retire at any time (without assigning any reason therefor and without being responsible for any costs occasioned by such retirement) by giving
not less than 15 Business Days’ prior written notice to that effect to the Facility Agent (on behalf of the Lenders) and the Company.
|
|
|
(b)
|
The Delegate Collateral Agent may not resign except with the prior consent of the Collateral Agent. Only after such consent is received and subject to the other
provisions of this Clause 7.3 and without being responsible for any costs occasioned by such resignation, the Delegate Collateral Agent may resign by giving not less than 15 Business Days’ prior written notice to that effect to the Facility
Agent (on behalf of the Lenders) and the Company.
|
|
|
(c)
|
The Facility Agent (acting on the instructions of the Required Lenders), after consultation with the Parent, may remove an Agent from its role as trustee under this
Deed by giving notice to that effect to the relevant Agent and each of the other Parties to this Deed.
|
18
|
|
(d)
|
The retirement or removal of a sole Collateral Agent or Delegate Collateral Agent shall not take effect until (i) the appointment of a successor Collateral Agent
or Delegate Collateral Agent, as the case may be, as a co-trustee has been made and (ii) the Facility Agent is satisfied that all things required to be done in order that the relevant Credit Documents continue to provide perfected and
enforceable security in favour of the successor Collateral Agent or Delegate Collateral Agent (as applicable) have been done.
|
|
|
(e)
|
If a notice of retirement or removal has been given under paragraph (a) or (b) above, the power to appoint new Agents shall vest in the Required Lenders. The
Required Lenders shall appoint a successor Collateral Agent or Delegate Collateral Agent, as the case may be, who shall be a commercial bank or trust company reasonably acceptable to the Company; provided that the Company’s consent shall not be
required if an Event of Default exists at the time of appointment of such successor Agent. If no successor Agent shall have (i) been appointed by the Required Lenders and (ii) accepted such appointment within 15 Business Days of the giving
of such notice, the Facility Agent (acting on the instructions of the Required Lenders), with the consent of the Company (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and
surplus of not less than $500,000,000 as successor Collateral Agent or Delegate Collateral Agent (as applicable) who shall serve as Agent until such time, if any, as the Required Lenders appoint a successor Collateral Agent or Delegate Collateral
Agent (as applicable) as provided above; provided that the Company’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Agent.
|
|
|
(f)
|
If a successor to the Collateral Agent or the Delegate Collateral Agent is appointed under the provisions of this Deed (i) the retiring Agent shall be discharged
from any further obligations under, but shall remain entitled to the benefits of, this Deed and (ii) the successor trustee and each of the other Parties shall have same rights and obligations amongst themselves as they would have had if such
successor had been an original party to this Deed.
|
No party to
this Deed may assign all or any of its rights or transfer any of its obligations under this Deed except as expressly contemplated by this Deed, by the Credit Agreement or as may be required by law.
|
8.2
|
Change of Secured Creditor
|
Any person which is (subject only to its accession to this Deed) a permitted assignee or a transferee of a Lender, a transferee of a ECF
Hedging Creditor or a successor Facility Agent, in each case for the purposes of and in accordance with the terms of the Credit Agreement, shall be entitled to execute and deliver to the Collateral Agent
19
a Secured Creditor Accession Undertaking, a Transfer Certificate or Assignment Agreement and, with effect from (x) the date of acceptance by, where appropriate, the Facility Agent (or, if
appropriate, the outgoing Facility Agent) and the Collateral Agent or (y) if later, the date specified in that Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement:
|
|
(a)
|
the Secured Creditor ceasing to be a Lender and/or Facility Agent shall be discharged from further obligations towards the Collateral Agent and other Secured Creditors
under this Deed and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to such date); and
|
|
|
(b)
|
as from that date, the new Lender or Facility Agent shall assume the same obligations, and become entitled to the same rights as it would have had if it had been an
original party to this Deed in that capacity.
|
Any ECF Hedging
Creditor that wishes to become a Party to this Deed in the capacity as a Secured Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Secured Creditor Accession Undertaking. With effect from the date of
acceptance by the Collateral Agent of a Secured Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by such ECF Hedging Creditor or, if later, the date specified in that Secured Creditor Accession Undertaking, the ECF
Hedging Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Deed in that capacity.
|
9.1
|
Transaction and Enforcement Expenses
|
The
Credit Parties shall, from time to time on demand of the Agents, reimburse the Agents:
|
|
(a)
|
for all reasonable documented out-of-pocket costs and expenses (including legal fees) properly incurred by the Agents, a Receiver or any Delegate in connection with the
negotiation, preparation and execution of this Deed and the Credit Documents and the completion of the transactions and perfection of the security contemplated in the Credit Documents; and
|
|
|
(b)
|
on a full indemnity basis, for all costs and expenses (including legal fees) incurred by the Agents, a Receiver or any Delegate in connection with the exercise,
preservation and/or enforcement of the Security, any of the rights, powers and remedies of the Agents and any proceedings instituted by or against the Agents as a consequence of taking or holding the Security or of enforcing those rights, powers and
remedies;
|
in each case, together with any applicable VAT thereon.
20
The Credit
Parties shall promptly pay all stamp, registration, notarial, documentary and other taxes or fees (including any penalties fines, supplements, surcharge or interest relating to such taxes) to which this Deed, the Credit Documents, the Transaction
Security or any judgment given in connection with them, is or at any time may be, subject and shall, from time to time, indemnify the Agents on demand against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax or fee.
If
any Credit Party fails to pay any sum on the due date for payment of that sum the relevant Credit Party shall pay interest on any such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on
such sum) from the date of demand until the date of payment calculated on a daily basis at the rate determined in accordance with the provisions of section 2.06(b) or (c) (
Interest
) (as applicable) of the Credit Agreement.
|
10.
|
AMENDMENTS AND RELEASES
|
The Company
and the Agents, if authorised by the Facility Agent, may amend the terms of, waive any of the requirements of, or grant consents under, this Deed any such amendment, waiver or consent shall be binding on all the Parties to this Deed and the Agents
shall be under no liability whatsoever in respect thereof
provided that
:
|
|
(i)
|
the prior consent of all of the Lenders is required to authorise any amendment to Clause 3.1 (
Order of Application
)), this Clause 10 or Clause 11
(
Termination of the Trusts
); and
|
|
|
(ii)
|
no new or additional obligations may be imposed upon, nor shall any amendment or waiver which relates to the rights of, the Facility Agent or of the Agents (including,
without limitation, Clause 4.3 (
Indemnity to Agents
)) be effective without the consent of the Facility Agent or, as the case may be, the Agents.
|
Upon:
|
|
(a)
|
a disposal of any of the Trust Property or Trust Property Delegated pursuant to the enforcement of the Security by a Receiver or the Agents;
|
|
|
(b)
|
a disposal of any of the Trust Property or Trust Property Delegated in accordance with section 14.21
(Release of Liens and the Parent Guaranty; Flag Jurisdiction
Transfer
) of the Credit Agreement; or
|
|
|
(c)
|
any other disposal of any of the Trust Property or Trust Property Delegated which is otherwise permitted under the Credit Documents,
|
21
the Agents shall (at the cost of the Credit Parties) release that property from the
Transaction Security to which it is subject and may execute, without the need for any further authority from the Secured Creditors, any release of the Security or other claim over that asset and to issue any certificates of non-crystallisation of
floating charges that may be required or desirable.
|
10.3
|
Release of Credit Parties
|
If a Credit Party ceases to be a Credit Party under the Credit Agreement then such Credit Party shall automatically be released as a
Credit Party under this Deed. Each of the Parties agrees that the Agents may release any of the Credit Parties from any guarantee or indemnity in the circumstances contemplated by the Credit Agreement. In the case of a Credit Party which is no
longer a Credit Party under the Credit Agreement, the Agents shall (at the cost of that Credit Party) release the Security granted by it and the Agents are authorised, without the need for further authority from the Secured Creditors, to execute
such agreements or deeds as are necessary to effect such a release.
|
11.
|
TERMINATION OF THE TRUSTS
|
The trusts set out in this Deed shall terminate on the Discharge Date. At that time the Agents shall release, without recourse or
warranty, all of the Transaction Security then held by it.
No
failure by the Agents to exercise, nor any delay by the Agents in exercising, any right or remedy under this Deed shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or other
exercise thereof or the exercise of any other such right or remedy.
|
13.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect or any of the Transaction Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity,
unenforceability or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Deed or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Transaction Security under the law of any other jurisdiction.
|
|
13.2
|
Potentially Avoided Payments
|
If the Agents determine that an amount paid to the Secured Creditors under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Deed, such amount shall be regarded as not having been paid.
22
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Credit Party hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agents could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Credit Parties in respect of any sum due to the Agents hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged
only to the extent that on the Business Day following receipt by the Agents of any sum adjudged to be so due in such other currency the Agents may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Agents in the specified currency, each Credit Party agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agents against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Agents in the specified currency, the Agents agree to remit such excess to
the Company.
The
rights and remedies provided by this Deed are cumulative and not exclusive of any rights or remedies provided by law.
Where
there are any inconsistencies between the Trustee Acts and the provisions of this Deed, the provisions of this Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of
this Deed shall constitute a restriction or exclusion for the purposes of that Act.
|
13.6
|
Conflicting provisions
|
If there is any conflict between the provisions of this Deed and any Credit Document with regard to instructions to or other matters
affecting the Agents, this Deed will prevail. However, nothing in this Deed shall limit the ability of the Agents to exercise any rights, powers and discretions it may have in its capacity as a Secured Creditor.
Nothing contained in this Deed shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it.
Any consents
given by the Agents for the purposes of this Deed may be given on such terms and subject to such conditions (if any) as the Agents may require.
23
|
14.1
|
Communications in Writing
|
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
(c)
|
to the Facility Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
24
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street New York,
New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square New York,
New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com,
or to such other address and/or number as is
notified in writing by a Party to the other Parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original Secured Creditors at the addressed identified with its name in Schedule 1 hereto; provided that, with respect to all notices and other
communication made by electronic mail or other electronic means, the Agents, the Facility Agent and the Company agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents or the Facility Agent shall not be effective until received by the
Agents or the Facility Agent (as applicable), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Company to the Agents or the Facility Agent,
only if it is addressed in such a manner as the Agents or the Facility Agent shall specify for this purpose.
25
|
15.
|
GOVERNING LAW AND JURISDICTION
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Each of the
parties hereto agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising our of or in connection with this Deed or any non-contractual obligations arising out of or in connection
with this Deed (“
Proceedings
”) and, for such purposes, irrevocably submits to the jurisdiction of such courts. Nothing in this Clause 15.2 shall (or shall be construed so as to) limit the right of any Secured Creditor to take
Proceedings in any other court of competent jurisdiction, nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings by any Secured Creditor in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by law.
For
the purpose of Clause 15.2 (
Jurisdiction
), the parties hereto irrevocably waive any objection which they might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and agree(s)
not to claim that any such court is not a convenient or appropriate forum.
The Credit
Parties agree that the process by which any Proceedings in England are begun may be served on it by being delivered to EC3 Services Limited at 51 Eastcheap, London, EC3M 1JP or, if different, its registered office for the time being. If such person
is not or ceases to be effectively appointed to accept service of process on behalf of the Credit Parties, the Credit Parties shall, on the written demand of any Secured Creditor, appoint a further person in England to accept service of process on
its behalf and, failing such appointment within 15 days, any Secured Creditor shall be entitled to appoint such a person by written notice to the Credit Parties. Nothing in this paragraph shall affect the right of any Secured Creditor to serve
process in any other manner permitted by law.
|
16.
|
COUNTERPARTS AND EFFECTIVENESS
|
This Deed
may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This Deed
shall take effect and be delivered as a deed on the date on which it is stated to be made notwithstanding that the Agents or any other Party may have executed it under hand only.
26
IN WITNESS WHEREOF
this Deed has been executed as a deed by the Credit Parties and has been signed on
behalf of the Agents and other Parties.
27
SCHEDULE 1
ORIGINAL SECURED CREDITORS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:
claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
28
SCHEDULE 2
FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
To:
|
KfW IPEX-Bank GmbH and [
•
], for themselves and each of the other Secured Creditors to the Security Trust Deed referred to below.
|
THIS UNDERTAKING
is made on [
date
] by [
new Lender/ECF Hedging Creditor/Facility Agent/Receiver/Delegate
] (the “
Acceding
Secured Creditor
”) in relation to the Security Trust Deed (the “
Security Trust Deed
”) dated [
•
] between KfW IPEX-Bank GmbH as Collateral Agent, Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral
Agent, KfW IPEX-Bank GmbH as facility agent, the Secured Creditors named therein and the Credit Parties. Terms defined in the Security Trust Deed shall bear the same meanings when used in this Undertaking.
In consideration of the Acceding Secured Creditor being accepted as a Secured Creditor for the purposes of the Security Trust Deed, the Acceding Secured
Creditor hereby confirms that, as from [
date
], it intends to be party to the Security Trust Deed as a Secured Creditor, undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by [the Facility Agent and
by]/[a Secured Creditor] and agrees that it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
This Undertaking shall be governed by and construed in accordance with English law.
THIS
UNDERTAKING
has been entered into on the date stated above.
Acceding [Secured Creditor]/[Facility Agent]
|
|
|
|
|
By:
|
|
|
|
Address for Notices:
Fax:
For attention
of:
|
|
|
|
Accepted by the Collateral Agent:
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
|
Date:
|
|
|
Accepted by the [Facility Agent]/[outgoing Facility Agent]:
|
|
|
|
|
|
for and on behalf of
[
Insert name of Facility Agent or outgoing Facility Agent as appropriate]
]
|
Date:
29
SIGNATORIES
THE COMPANY
Signed as a deed on behalf of
BREAKAWAY
ONE, LTD.
, a company incorporated in
Bermuda, by [
full name(s) of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory,
[is][are] acting under the authority of the
company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE PARENT
Signed as a deed on behalf of
NCL
CORPORATION LTD.
, a company
incorporated in Bermuda, by [
full name(s) of
person(s) signing
], being [a] person[s] who, in
accordance with the laws of that
territory,
[is][are] acting under the authority of the
company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE ORIGINAL SECURED CREDITORS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK
ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE COLLATERAL AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE DELEGATE COLLATERAL AGENT
Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by [
name
of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
EXHIBIT Q
Dated [•] 2010
HULL NO. S. 678
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY ONE, LTD.
as Borrower
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
DELEGATION
|
|
|
5
|
|
|
3.
|
|
COVENANT TO PAY
|
|
|
5
|
|
|
4.
|
|
LEGAL ASSIGNMENT
|
|
|
5
|
|
|
5.
|
|
THE CONTRACT
|
|
|
6
|
|
|
6.
|
|
CONTINUING SECURITY
|
|
|
7
|
|
|
7.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
9
|
|
|
8.
|
|
UNDERTAKINGS
|
|
|
10
|
|
|
9.
|
|
FURTHER ASSURANCE
|
|
|
11
|
|
|
10.
|
|
ENFORCEMENT OF SECURITY
|
|
|
12
|
|
|
11.
|
|
RECEIVERS
|
|
|
12
|
|
|
12.
|
|
APPLICATION OF PROCEEDS
|
|
|
13
|
|
|
13.
|
|
POWER OF ATTORNEY
|
|
|
13
|
|
|
14.
|
|
RELEASE OF THE SECURITY
|
|
|
13
|
|
|
15.
|
|
PAYMENTS
|
|
|
14
|
|
|
16.
|
|
WAIVERS AND REMEDIES
|
|
|
14
|
|
|
17.
|
|
ADDITIONAL PROVISIONS
|
|
|
14
|
|
|
18.
|
|
ASSIGNMENT
|
|
|
15
|
|
|
19.
|
|
NOTICES
|
|
|
16
|
|
|
20.
|
|
GOVERNING LAW
|
|
|
18
|
|
|
21.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
18
|
|
|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
|
|
19
|
|
|
SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
22
|
|
|
SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
|
23
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH
as collateral agent for and on behalf of the Secured Creditors (the “
Collateral Agent
”, which expression includes any
person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
|
(3)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the “
Delegate
”, which expression includes any person which is for the time being a delegate
appointed by the Collateral Agent for the purposes of this Assignment.
|
RECITALS
|
(A)
|
The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
|
|
(C)
|
The Borrower and the Delegate intend this Assignment to take effect as a deed.
|
|
(D)
|
Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreement, the Security Trust Deed and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit Agreement.
“
Assigned Rights
” means the Borrower’s rights, title, interest and benefits in, to and in respect of the
Refund Guarantees.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Borrower, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel (as defined in the Credit Agreement).
“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the date hereof between,
inter
alia
, the Parent, the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Borrower, the Lenders, the collateral agent under the Jade Credit Facility, the collateral agent under the Jewel Credit Facility and the Collateral Agent.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate
Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 1 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on or about the
date hereof between the Borrower, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the Term Loan Security Trust Deed to act as security trustee for and on behalf of the Term Loan Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
2
“
Refund Guarantees
” means any and all refund guarantees from time to time
issued in favour of the Borrower by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Delegate is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Term Loan Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter
alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Term Loan Facilities.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
3
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
4
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
|
2.1
|
Pursuant to the Security Trust Deed, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights, powers
and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deed including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deed. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Borrower agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Delegate.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured Obligations.
|
4.2
|
Non-Assignable Rights
|
The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
5
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Borrower shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Borrower shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Borrower on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees).
|
6
|
5.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect
and enforce the interests of the Delegate in the Refund Guarantees.
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate under this
Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
7
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
8
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Borrower acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreement, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
9
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement and the Credit Agreement, no person other
than the Borrower has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise,
the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
10
The Borrower
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
8.3
|
Notification of Misrepresentation
|
The Borrower shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Borrower shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Borrower shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement
to Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Delegate until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all
such notices and directions as the Delegate may consider necessary.
11
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in
such manner as it thinks fit.
Following
the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal in
paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the Delegate
may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for all purposes the
agent of the Borrower.
12
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement or, following the termination thereof, in accordance with the provisions of the Credit Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
13
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Borrower
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
14
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such
excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
15
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit Agreement.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deed.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
Domstrasse 18
D - 20095 Hamburg
Germany
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
(b)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
16
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Borrower agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Borrower to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
17
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the Collateral Agent and/or the Delegate may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
|
|
21.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower, the Collateral Agent and the Delegate.
18
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
To:
|
KfW IPEX-Bank GmbH as Refund Guarantor
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
—
]
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
|
Cc:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
Attn.:
Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [•] (the
“
Assignment
”) and made between Breakaway One, Ltd. (the “
Borrower
”), KfW IPEX-Bank GmbH as Collateral Agent and [•] as delegate (the “
Delegate
”), the Borrower has assigned to the Delegate a
first priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
•
] and issued by you as refund guarantor in favour of the Borrower pursuant to which you guarantee certain
refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
19
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Delegate, all remedies of the Borrower provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Delegate;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Borrower has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is
given by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Borrower
which meets the Borrower’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by the Facility Agent (as defined in the Credit Agreement) to such termination;
|
|
(g)
|
the Delegate has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Borrower) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Borrower could do in relation to the Refund Guarantee. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time
to time in connection with the Refund Guarantee without further authority or enquiry by you from the Borrower; and
|
20
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are
hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
21
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[
To be printed only on copy of the Notice of
Assignment given
]
|
To:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
Attn.:
Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the Delegate as security trustee on behalf of certain “term loan creditors” in
respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title, interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the
Notice.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the
Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
|
|
|
|
|
Yours faithfully
|
|
|
|
|
|
|
|
|
|
|
For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Date:
|
22
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
|
|
|
[Name of Issuer]
|
|
[Date of Refund Guarantee]
|
23
SIGNATORIES
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY ONE, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s]
who, in accordance with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
24
Exhibit 10.58
EXECUTION COPY
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
€529,846,154
CREDIT AGREEMENT
among
NCL CORPORATION LTD.,
as Parent,
BREAKAWAY TWO, LTD.,
as Borrower,
VARIOUS LENDERS,
KFW IPEX-BANK GMBH,
as Facility Agent, Collateral Agent and CIRR Agent,
NORDEA BANK NORGE
ASA,
as Documentation Agent,
and
COMMERZBANK AKTIENGESELLSCHAFT,
as Hermes Agent
Dated
November 18, 2010
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
DNB NOR BANK ASA,
HSBC BANK PLC,
KFW IPEX-BANK GMBH
and
NORDEA BANK NORGE ASA,
as Joint Lead Arrangers
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
|
SECTION 1. Definitions and Accounting Terms
|
|
|
1
|
|
|
|
|
|
1.01 Defined Terms
|
|
|
1
|
|
|
|
|
|
SECTION 2. Amount and Terms of Credit Facility
|
|
|
29
|
|
|
|
|
|
2.01 The Commitments
|
|
|
29
|
|
|
2.02 Amount and Timing of Each Borrowing; Currency of Disbursements
|
|
|
29
|
|
|
2.03 Notice of Borrowing
|
|
|
30
|
|
|
2.04 Disbursement of Funds
|
|
|
31
|
|
|
2.05 Pro Rata Borrowings
|
|
|
31
|
|
|
2.06 Interest
|
|
|
31
|
|
|
2.07 [Intentionally Omitted]
|
|
|
32
|
|
|
2.08 Increased Costs, Illegality, etc.
|
|
|
32
|
|
|
2.09 [Intentionally Omitted]
|
|
|
34
|
|
|
2.10 Change of Lending Office; Limitation on Additional Amounts
|
|
|
34
|
|
|
2.11 Replacement of Lenders
|
|
|
35
|
|
|
2.12 Disruption to Payment Systems, Etc.
|
|
|
36
|
|
|
|
|
|
SECTION 3. Commitment Commission; Fees; Reductions of Commitment
|
|
|
36
|
|
|
|
|
|
3.01 Commitment Commission
|
|
|
36
|
|
|
3.02 Voluntary Reduction or Termination of Commitments
|
|
|
37
|
|
|
3.03 Mandatory Reduction of Commitments
|
|
|
37
|
|
|
|
|
|
SECTION 4. Prepayments; Repayments; Taxes
|
|
|
37
|
|
|
|
|
|
4.01 Voluntary Prepayments
|
|
|
37
|
|
|
4.02 Mandatory Repayments and Commitment Reductions
|
|
|
38
|
|
|
4.03 Method and Place of Payment
|
|
|
39
|
|
|
4.04 Net Payments; Taxes
|
|
|
39
|
|
|
4.05 Application of Proceeds
|
|
|
40
|
|
|
4.06 Breakage Costs
|
|
|
42
|
|
|
|
|
|
SECTION 5. Conditions Precedent to the Initial Borrowing Date
|
|
|
42
|
|
|
|
|
|
5.01 Effective Date
|
|
|
42
|
|
|
5.02 Intercreditor Agreement
|
|
|
42
|
|
|
5.03 Corporate Documents; Proceedings; etc.
|
|
|
42
|
|
|
5.04 Know Your Customer
|
|
|
42
|
|
|
5.05 Construction Contract and Other Material Agreements
|
|
|
42
|
|
|
5.06 Share Charge
|
|
|
43
|
|
|
5.07 Assignment of Contracts
|
|
|
43
|
|
|
5.08 Consents Under Existing Credit Facilities
|
|
|
43
|
|
|
5.09 Process Agent
|
|
|
43
|
|
|
5.10 Opinions of Counsel
|
|
|
44
|
|
(i)
|
|
|
|
|
|
|
5.11 KfW Refinancing
|
|
|
44
|
|
|
5.12 Equity Payment
|
|
|
45
|
|
|
5.13 Financing Statements
|
|
|
45
|
|
|
5.14 Security Trust Deed
|
|
|
45
|
|
|
|
|
|
SECTION 6. Conditions Precedent to each Borrowing Date
|
|
|
45
|
|
|
|
|
|
6.01 No Default; Representations and Warranties
|
|
|
45
|
|
|
6.02 Consents
|
|
|
45
|
|
|
6.03 Refund Guarantees
|
|
|
46
|
|
|
6.04 Equity Payment
|
|
|
46
|
|
|
6.05 Fees, Costs, etc.
|
|
|
46
|
|
|
6.06 Construction Contract
|
|
|
46
|
|
|
6.07 Hermes Cover
|
|
|
47
|
|
|
6.08 Notice of Borrowing
|
|
|
47
|
|
|
6.09 Solvency Certificate
|
|
|
47
|
|
|
6.10 Litigation
|
|
|
47
|
|
|
|
|
|
SECTION 7. Conditions Precedent to the Delivery Date
|
|
|
47
|
|
|
|
|
|
7.01 Delivery of Vessel
|
|
|
47
|
|
|
7.02 Collateral and Guaranty Requirements
|
|
|
48
|
|
|
7.03 Evidence of 20% Payment
|
|
|
48
|
|
|
7.04 Hermes Compliance; Compliance with Applicable Laws and Regulations
|
|
|
48
|
|
|
7.05 Opinion of Counsel
|
|
|
48
|
|
|
|
|
|
SECTION 8. Representations and Warranties
|
|
|
49
|
|
|
|
|
|
8.01 Entity Status
|
|
|
49
|
|
|
8.02 Power and Authority
|
|
|
49
|
|
|
8.03 No Violation
|
|
|
49
|
|
|
8.04 Governmental Approvals
|
|
|
50
|
|
|
8.05 Financial Statements; Financial Condition
|
|
|
50
|
|
|
8.06 Litigation
|
|
|
50
|
|
|
8.07 True and Complete Disclosure
|
|
|
50
|
|
|
8.08 Use of Proceeds
|
|
|
51
|
|
|
8.09 Tax Returns and Payments
|
|
|
51
|
|
|
8.10 No Material Misstatements
|
|
|
51
|
|
|
8.11 The Security Documents
|
|
|
51
|
|
|
8.12 Capitalization
|
|
|
52
|
|
|
8.13 Subsidiaries
|
|
|
52
|
|
|
8.14 Compliance with Statutes, etc.
|
|
|
52
|
|
|
8.15 Winding-up, etc.
|
|
|
52
|
|
|
8.16 No Default
|
|
|
53
|
|
|
8.17 Pollution and Other Regulations
|
|
|
53
|
|
|
8.18 Ownership of Assets
|
|
|
54
|
|
|
8.19 Concerning the Vessel
|
|
|
54
|
|
|
8.20 Citizenship
|
|
|
54
|
|
|
8.21 Vessel Classification
|
|
|
54
|
|
(ii)
|
|
|
|
|
|
|
8.22 No Immunity
|
|
|
54
|
|
|
8.23 Fees, Governing Law and Enforcement
|
|
|
54
|
|
|
8.24 Form of Documentation
|
|
|
55
|
|
|
8.25 Pari Passu or Priority Status
|
|
|
55
|
|
|
8.26 Solvency
|
|
|
55
|
|
|
8.27 No Undisclosed Commissions
|
|
|
55
|
|
|
8.28 Completeness of Documentation
|
|
|
55
|
|
|
8.29 Money Laundering
|
|
|
55
|
|
|
|
|
|
SECTION 9. Affirmative Covenants
|
|
|
55
|
|
|
|
|
|
9.01 Information Covenants
|
|
|
56
|
|
|
9.02 Books and Records; Inspection
|
|
|
58
|
|
|
9.03 Maintenance of Property; Insurance
|
|
|
58
|
|
|
9.04 Corporate Franchises
|
|
|
58
|
|
|
9.05 Compliance with Statutes, etc.
|
|
|
58
|
|
|
9.06 Hermes Cover
|
|
|
59
|
|
|
9.07 End of Fiscal Years
|
|
|
59
|
|
|
9.08 Performance of Credit Document Obligations
|
|
|
59
|
|
|
9.09 Payment of Taxes
|
|
|
59
|
|
|
9.10 Further Assurances
|
|
|
59
|
|
|
9.11 Ownership of Subsidiaries
|
|
|
60
|
|
|
9.12 Consents and Registrations
|
|
|
60
|
|
|
9.13 Flag of Vessel
|
|
|
60
|
|
|
9.14 “Know Your Customer” and Other Similar Information
|
|
|
61
|
|
|
|
|
|
SECTION 10. Negative Covenants
|
|
|
61
|
|
|
|
|
|
10.01 Liens
|
|
|
61
|
|
|
10.02 Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc.
|
|
|
62
|
|
|
10.03 Dividends
|
|
|
63
|
|
|
10.04 Advances, Investments and Loans
|
|
|
64
|
|
|
10.05 Transactions with Affiliates
|
|
|
64
|
|
|
10.06 Free Liquidity
|
|
|
67
|
|
|
10.07 Total Net Funded Debt to Total Capitalization
|
|
|
67
|
|
|
10.08 Collateral Maintenance
|
|
|
67
|
|
|
10.09 Consolidated EBITDA to Consolidated Debt Service
|
|
|
67
|
|
|
10.10 Business; Change of Name
|
|
|
67
|
|
|
10.11 Subordination of Indebtedness
|
|
|
68
|
|
|
10.12 Activities of Borrower, etc.
|
|
|
68
|
|
|
10.13 Material Amendments or Modifications of Construction Contracts
|
|
|
68
|
|
|
10.14 No Place of Business
|
|
|
68
|
|
|
|
|
|
SECTION 11. Events of Default
|
|
|
68
|
|
|
|
|
|
11.01 Payments
|
|
|
68
|
|
|
11.02 Representations, etc.
|
|
|
69
|
|
|
11.03 Covenants
|
|
|
69
|
|
|
11.04 Default Under Other Agreements
|
|
|
69
|
|
(iii)
|
|
|
|
|
|
|
11.05 Bankruptcy, etc.
|
|
|
70
|
|
|
11.06 Total Loss
|
|
|
71
|
|
|
11.07 Security Documents
|
|
|
71
|
|
|
11.08 Guaranties
|
|
|
71
|
|
|
11.09 Judgments
|
|
|
71
|
|
|
11.10 Cessation of Business
|
|
|
71
|
|
|
11.11 Revocation of Consents
|
|
|
71
|
|
|
11.12 Unlawfulness
|
|
|
71
|
|
|
11.13 Insurances
|
|
|
72
|
|
|
11.14 Disposals
|
|
|
72
|
|
|
11.15 Government Intervention
|
|
|
72
|
|
|
11.16 Change of Control
|
|
|
72
|
|
|
11.17 Material Adverse Change
|
|
|
72
|
|
|
11.18 Repudiation of Construction Contract or other Material Documents
|
|
|
73
|
|
|
|
|
|
SECTION 12. Agency and Security Trustee Provisions
|
|
|
73
|
|
|
|
|
|
12.01 Appointment and Declaration of Trust
|
|
|
73
|
|
|
12.02 Nature of Duties
|
|
|
74
|
|
|
12.03 Lack of Reliance on the Agents
|
|
|
74
|
|
|
12.04 Certain Rights of the Agents
|
|
|
75
|
|
|
12.05 Reliance
|
|
|
75
|
|
|
12.06 Indemnification
|
|
|
75
|
|
|
12.07 The Agents in their Individual Capacities
|
|
|
75
|
|
|
12.08 Resignation by an Agent
|
|
|
75
|
|
|
12.09 The Joint Lead Arrangers
|
|
|
76
|
|
|
12.10 Impaired Agent
|
|
|
76
|
|
|
12.11 Replacement of an Agent
|
|
|
77
|
|
|
12.12 Resignation by the Hermes Agent
|
|
|
77
|
|
|
|
|
|
SECTION 13. Benefit of Agreement
|
|
|
78
|
|
|
|
|
|
13.01 Assignments and Transfers by the Lenders
|
|
|
78
|
|
|
13.02 Assignment or Transfer Fee
|
|
|
79
|
|
|
13.03 Assignments and Transfers to Hermes or KfW
|
|
|
80
|
|
|
13.04 Limitation of Responsibility to Existing Lenders
|
|
|
80
|
|
|
13.05 [Intentionally Omitted]
|
|
|
80
|
|
|
13.06 Procedure and Conditions for Transfer
|
|
|
80
|
|
|
13.07 Procedure and Conditions for Assignment
|
|
|
81
|
|
|
13.08 Copy of Transfer Certificate or Assignment Agreement to Parent
|
|
|
82
|
|
|
13.09 Security over Lenders’ Rights
|
|
|
82
|
|
|
13.10 Assignment by a Credit Party
|
|
|
83
|
|
|
13.11 Lender Participations
|
|
|
83
|
|
|
13.12 Increased Costs
|
|
|
84
|
|
|
|
|
|
SECTION 14. Miscellaneous
|
|
|
84
|
|
|
|
|
|
14.01 Payment of Expenses, etc.
|
|
|
84
|
|
|
14.02 Right of Set-off
|
|
|
85
|
|
(iv)
|
|
|
|
|
|
|
14.03 Notices
|
|
|
85
|
|
|
14.04 No Waiver; Remedies Cumulative
|
|
|
86
|
|
|
14.05 Payments Pro Rata
|
|
|
86
|
|
|
14.06 Calculations; Computations
|
|
|
87
|
|
|
14.07
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
|
|
|
87
|
|
|
14.08 Counterparts
|
|
|
88
|
|
|
14.09 Effectiveness
|
|
|
88
|
|
|
14.10 Headings Descriptive
|
|
|
89
|
|
|
14.11 Amendment or Waiver; etc.
|
|
|
89
|
|
|
14.12 Survival
|
|
|
90
|
|
|
14.13 Domicile of Loans
|
|
|
90
|
|
|
14.14 Confidentiality
|
|
|
90
|
|
|
14.15 Register
|
|
|
91
|
|
|
14.16 Third Party Rights
|
|
|
91
|
|
|
14.17 Judgment Currency
|
|
|
91
|
|
|
14.18 Language
|
|
|
92
|
|
|
14.19 Waiver of Immunity
|
|
|
92
|
|
|
14.20 “Know Your Customer” Notice
|
|
|
92
|
|
|
14.21 Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
|
|
|
92
|
|
|
14.22 Partial Invalidity
|
|
|
93
|
|
|
|
|
|
SECTION 15. Parent Guaranty
|
|
|
93
|
|
|
|
|
|
15.01 Guaranty and Indemnity
|
|
|
93
|
|
|
15.02 Continuing Guaranty
|
|
|
94
|
|
|
15.03 Reinstatement
|
|
|
94
|
|
|
15.04 Waiver of Defenses
|
|
|
94
|
|
|
15.05 Guarantor Intent
|
|
|
95
|
|
|
15.06 Immediate Recourse
|
|
|
95
|
|
|
15.07 Appropriations
|
|
|
95
|
|
|
15.08 Deferral of Guarantor’s Rights
|
|
|
95
|
|
|
15.09 Additional Security
|
|
|
96
|
|
|
|
|
|
|
|
|
SCHEDULE 1.01(a)
|
|
-
|
|
Commitments
|
|
SCHEDULE 1.01(b)
|
|
-
|
|
Mandatory Costs
|
|
SCHEDULE 5.07
|
|
-
|
|
Notices, Acknowledgments and Consents
|
|
SCHEDULE 5.10
|
|
-
|
|
Initial Borrowing Date Opinions
|
|
SCHEDULE 6.10
|
|
-
|
|
Material Litigation
|
|
SCHEDULE 7.05
|
|
-
|
|
Delivery Date Opinions
|
|
SCHEDULE 8.03
|
|
-
|
|
Existing Agreements
|
|
SCHEDULE 8.12
|
|
-
|
|
Capitalization
|
|
SCHEDULE 8.13
|
|
-
|
|
Subsidiaries
|
|
SCHEDULE 8.19
|
|
-
|
|
Vessel
|
|
SCHEDULE 8.21
|
|
-
|
|
Approved Classification Societies
|
|
SCHEDULE 9.03
|
|
-
|
|
Required Insurances
|
|
SCHEDULE 10.01
|
|
-
|
|
Existing Liens
|
(v)
|
|
|
|
|
|
|
SCHEDULE 14.03A
|
|
-
|
|
Credit Party Addresses
|
|
SCHEDULE 14.03B
|
|
-
|
|
Lender Addresses
|
|
|
|
|
|
EXHIBIT A
|
|
-
|
|
Form of Notice of Borrowing
|
|
EXHIBIT B-1
|
|
-
|
|
Form of BankAssure Report
|
|
EXHIBIT B-2
|
|
-
|
|
Form of Insurance Broker Certificate
|
|
EXHIBIT C
|
|
-
|
|
Form of Interaction Agreement
|
|
EXHIBIT D
|
|
-
|
|
Form of Secretary’s Certificate
|
|
EXHIBIT E
|
|
-
|
|
Form of Transfer Certificate
|
|
EXHIBIT F
|
|
-
|
|
Form of Bermuda Share Charge
|
|
EXHIBIT G
|
|
-
|
|
Form of Assignment of Earnings
|
|
EXHIBIT H
|
|
-
|
|
Form of Assignment of Insurances
|
|
EXHIBIT I
|
|
-
|
|
Form of Deed of Covenants
|
|
EXHIBIT J
|
|
-
|
|
Form of Assignment of Contracts
|
|
EXHIBIT K
|
|
-
|
|
Form of Solvency Certificate
|
|
EXHIBIT L
|
|
-
|
|
Form of Assignment Agreement
|
|
EXHIBIT M
|
|
-
|
|
Form of Compliance Certificate
|
|
EXHIBIT N
|
|
-
|
|
Form of Intercreditor Agreement
|
|
EXHIBIT O
|
|
-
|
|
Form of Assignment of Management Agreements
|
|
EXHIBIT P
|
|
-
|
|
Form of Security Trust Deed
|
|
EXHIBIT Q
|
|
-
|
|
Form of Assignment of KfW Refund Guarantees
|
(vi)
THIS CREDIT AGREEMENT, is made by way of deed November 18, 2010, among NCL CORPORATION
LTD., a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”), BREAKAWAY TWO, LTD., a Bermuda company with its registered office as of the date
hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Borrower
”), the Lenders party hereto from time to time, KFW IPEX-BANK GMBH, as Facility Agent (in such capacity, the “
Facility Agent
”), as
Collateral Agent under the Security Documents (in such capacity, the “
Collateral Agent
”) and as CIRR Agent (in such capacity, the “
CIRR Agent
”), NORDEA BANK NORGE ASA, as Documentation Agent (in such capacity, the
“
Documentation Agent
”), COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent (in such capacity, the “
Hermes Agent
”), and each of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, DNB NOR BANK ASA, HSBC BANK PLC, KFW IPEX-BANK
GMBH and NORDEA BANK NORGE ASA, each in their capacity as joint lead arranger in respect of the credit facility provided for herein (together, the “
Joint Lead Arrangers
”). All capitalized terms used herein and defined in
Section 1 are used herein as therein defined.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a multi-draw term loan
credit facility in an aggregate principal amount of €529,846,154 pursuant to which Loans may be incurred to finance, in part, the construction and acquisition costs of the Vessel and the related Hermes Premium;
WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are willing to make available to the Borrower the
term loan facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1.
Definitions and Accounting Terms
.
1.01
Defined Terms
. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms
defined) and references to this Agreement or any other document (or to any specified provision of this Agreement or any other document) shall be construed as references to this Agreement, that provision or that document as from time to time amended,
restated, supplemented and/or novated:
“
Acceptable Bank
” means (a) a bank or financial institution
which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A2 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency; or (b) any other
bank or financial institution approved by each Agent.
“
Acceptable Flag Jurisdiction
” shall mean the Bahamas,
Bermuda, Panama, the Marshall Islands, the United States or such other flag jurisdiction as may be acceptable to the Required Lenders in their reasonable discretion.
“
Acquisition
” means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of
the Capital Stock of any Person or otherwise causing any Person to become a Subsidiary of a Borrower, or (c) a merger, amalgamation or consolidation or any other combination with another Person.
“
Adjusted Construction Price
” shall mean the sum of the Initial Construction Price of the Vessel and the total permitted
increases to the Initial Construction Price of the Vessel pursuant to Permitted Change Orders (it being understood that the Final Construction Price may exceed the Adjusted Construction Price).
“
Affiliate
” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person;
provided
,
however
, that for purposes of Section 10.05, an Affiliate of the Parent or any of its Subsidiaries, as applicable, shall include any Person that directly or
indirectly owns more than 10% of any class of the Capital Stock of the Parent or such Subsidiary, as applicable, and any officer or director of the Parent or such Subsidiary. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary
contained above, for purposes of Section 10.05, neither the Facility Agent, nor the Collateral Agent, nor the Joint Lead Arrangers nor any Lender (or any of their respective affiliates) shall be deemed to constitute an Affiliate of the Parent
or its Subsidiaries in connection with the Credit Documents or its dealings or arrangements relating thereto.
“
Affiliate Transaction
” shall have the meaning provided in Section 10.05.
“
Agent
” or “
Agents
” shall mean, individually and collectively, the Facility Agent, the Collateral
Agent, the Delegate Collateral Agent, the Hermes Agent, the Documentation Agent and the CIRR Agent.
“
Agreement
” shall mean this Credit Agreement, as modified, supplemented, amended, restated or novated from time to time.
“
Apollo
” shall mean Apollo Management, L.P., and its Affiliates.
“
Applicable Margin
” shall mean a percentage per annum equal to 1.40%.
“
Appraised Value
” of the Vessel at any time shall mean the average of the fair market value of the Vessel on an
individual charter free basis as set forth on the appraisals most recently delivered to, or obtained by, the Facility Agent prior to such time pursuant to Section 9.01(c).
“
Approved Appraisers
” shall mean Brax Shipping AS; Barry Rogliano Salles S.A., Paris; Clarksons, London; R.S. Platou
Shipbrokers, A.S., Oslo; and Fearnsale, a division of Astrup Fearnley AS, Oslo.
-2-
“
Approved Stock Exchange
” shall mean the New York Stock Exchange, NASDAQ or
such other stock exchange in the United States of America, the United Kingdom or Hong Kong as is approved in writing by the Facility Agent or, in each case, any successor thereto.
“
Assignment Agreement
” shall mean an Assignment Agreement substantially in the form of Exhibit L (appropriately
completed) or any other form agreed between the relevant assignor and assignee (and if required to be executed by the Borrower, the Borrower);
provided
that if such other form does not contain the undertaking set out in Clause 7 of Exhibit L
it shall not be a Creditor Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.
“
Assignment of Charters
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignment of Contracts
” shall have the meaning provided in Section 5.07.
“
Assignment of Earnings
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignment of Insurances
” shall have the meaning provided in the definition of
“Collateral and Guaranty Requirements”.
“
Assignment of KfW Refund Guarantees
” shall have the
meaning provided in Section 5.07.
“
Assignment of Management Agreements
” shall have the meaning provided
in the definition of “Collateral and Guaranty Requirements”.
“
Bankruptcy Code
” shall have the
meaning provided in Section 11.05(b).
“
Basel II
” shall mean the “International Convergence of
Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
“
Borrower
” shall have the meaning provided in the first paragraph of this Agreement.
“
Borrowing
” shall mean the borrowing of Loans from all the Lenders (other than any Lender which has not funded its share
of a Borrowing in accordance with this Agreement) having Commitments on a given date.
“
Borrowing Date
” shall
mean each date (including the Initial Borrowing Date) on which a Borrowing occurs as set forth in Section 2.02.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
-3-
“
Capital Stock
” means:
(1) in the case of a corporation, corporate stock or shares;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
“
Cash Balance
” shall mean, at any date of determination,
the unencumbered and otherwise unrestricted cash and Cash Equivalents of the NCLC Group.
“
Cash Equivalents
”
shall mean (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (
provided
that the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by any Person, (iii) repurchase obligations with a term of not more than 90 days for underlying
securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Person incorporated in the United States rated at least
A-1 or the equivalent thereof by S&P or at least B-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by any other Person, and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
“
CERCLA
” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601
et
seq
.
“
Change of Control
” shall mean (x) at any time when the ordinary Capital Stock of the
Parent (or a parent company of the Parent in a Qualified IPO) is not listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Parent by way of a share issue pursuant to a public offering
on an Approved Stock Exchange, the Permitted Holders in the aggregate do not, directly or indirectly, control the Parent and beneficially own, directly or indirectly, at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent;
or (y) at any time following the listing of the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) on an Approved Stock Exchange:
(i) any Third Party:
-4-
|
|
(A)
|
owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Parent; or
|
|
|
(B)
|
has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the
Parent; and
|
at the same time as any of the events described in paragraphs (A) or (B) of this
definition have occurred and are continuing, the Permitted Holders in the aggregate do not, directly or indirectly, beneficially own at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or
(ii) the Parent (or such parent company of the Parent) ceases to be a listed company on an Approved Stock Exchange without the prior
written consent of the Required Lenders,
(and, for the purpose of Section 11.16 “control” of any company, limited partnership
or other legal entity (a “body corporate”) controlled by a Permitted Holder means that one or more members of a Permitted Holder in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body
corporate, whether through the ownership of more than 50% of the issued voting capital of that body corporate or by contract, trust or other arrangement).
“
CIRR Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
“
CIRR General Terms and Conditions
” shall mean the CIRR General Terms and Conditions for interest rate make-up in ship
financing schemes (May 12, 2009 edition).
“
CIRR Rate
” shall mean 3.10% per annum (including
0.20% per annum being the administrative fee in accordance with Section 1.2.2 of the CIRR General Terms and Conditions).
“
Collateral
” shall mean all property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security
Document, including, without limitation, all Share Charge Collateral, all Earnings and Insurance Collateral, the Construction Risk Insurance, the Vessel, the Refund Guarantees, the Construction Contract and all cash and Cash Equivalents at any time
delivered as collateral thereunder or as collateral required hereunder.
“
Collateral Agent
” shall have the
meaning provided in the first paragraph of this agreement, and shall include any successor thereto, acting as mortgagee, security trustee or collateral agent for the Secured Creditors pursuant to the Security Documents.
“
Collateral and Guaranty Requirements
” shall mean with respect to the Vessel, the requirement that:
-5-
(i) (A) the Borrower shall have duly authorized, executed and delivered an Assignment of
Earnings substantially in the form of Exhibit G or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time, the “
Assignment of Earnings
”) and an Assignment of Insurances
substantially in the form of Exhibit H or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time, the “
Assignment of Insurances
”), in each case (to the extent
incorporated into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) with appropriate notices, acknowledgements and consents relating thereto and (B) the Borrower shall (x) use its commercially
reasonable efforts to obtain an Assignment of Charters substantially in the form of exhibit B to the Assignment of Earnings (as modified, supplemented or amended from time to time, the “
Assignment of Charters
”) with (to the extent
incorporated into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) appropriate notices, acknowledgements and consents relating thereto for any charter or similar contract that has as of the execution
date of such charter or similar contract a remaining term of 13 months or greater (including any renewal option) and (y) have obtained a subordination agreement from the charterparty for any Permitted Chartering Arrangement that the Borrower
has entered into with respect to the Vessel, and shall use commercially reasonable efforts to provide appropriate notices and consents related thereto, together covering all of the Borrower’s present and future Earnings and Insurance
Collateral, in each case together with:
(a) proper financing statements (Form UCC-1 or the equivalent) fully
prepared for filing in accordance with the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or give notice to third parties of, as the
case may be, the security interests purported to be created by the Assignment of Earnings and the Assignment of Insurances; and
(b) certified copies of lien search results (Form UCC-11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida,
together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully prepared for filing if required by applicable law to terminate for any financing statement which covers the Collateral
except to the extent evidencing Permitted Liens.
(ii) the Borrower shall have duly authorized, executed and delivered an
Assignment of Management Agreements in respect of the Management Agreements for the Vessel substantially in the form of Exhibit O or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time,
the “
Assignment of Management Agreements
”) and shall have obtained (or in the case of any Manager that is not a Subsidiary of the Parent, used commercially reasonable efforts to obtain) a Manager’s Undertakings for the Vessel;
(iii) the Borrower shall have duly authorized, executed and delivered, and caused to be registered in the appropriate vessel
registry a first priority mortgage and a deed of covenants (as modified, amended or supplemented from time to time in accordance with the
-6-
terms thereof and hereof, and together with the Vessel Mortgage delivered pursuant to the definition of Flag Jurisdiction Transfer, the “
Vessel Mortgage
”), substantially in the
form of Exhibit I or otherwise reasonably acceptable to the Joint Lead Arrangers with respect to the Vessel, and the Vessel Mortgage shall be effective to create in favor of the Collateral Agent a legal, valid and enforceable first priority security
interest, in and Lien upon the Vessel, subject only to Permitted Liens;
(iv) all filings, deliveries of notices and other
instruments and other actions by the Credit Parties and/or the Collateral Agent necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve the security interests described in clauses (i) through and
including (iii) above shall have been duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Facility Agent shall have received each of the following:
(a) certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed
certificates and indicating) the registered ownership of the Vessel by the Borrower; and
(b) the results of
maritime registry searches with respect to the Vessel, indicating that the Vessel has been deleted from all new building registers and that there are no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted
Liens; and
(c) class certificates reasonably satisfactory to it from Det Norske Veritas or another
classification society listed on Schedule 8.21 hereto (or another internationally recognized classification society reasonably acceptable to the Facility Agent), indicating that the Vessel meets the criteria specified in Section 8.21; and
(d) certified copies of all Management Agreements; and
(e) certified copies of all ISM and ISPS Code documentation for the Vessel; and
(f) the Facility Agent shall have received a report, in substantially the form of Exhibit B-1 or otherwise reasonably
acceptable to the Facility Agent, from BankAssure or another firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained (or to be maintained) by the Credit Parties in respect of
the Vessel, together with a certificate in substantially the form of Exhibit B-2 or otherwise reasonably acceptable to the Facility Agent, from another broker certifying that such insurances (i) are placed with such insurance companies and/or
underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds and (ii) include the Required Insurance. In addition, the Borrower shall reimburse the Facility
Agent for the reasonable and documented costs of procuring customary mortgagee
-7-
interest insurance and additional perils insurance in connection with the Vessel as contemplated by Section 9.03 (including Schedule 9.03).
“
Collateral Disposition
” shall mean (i) the sale, lease, transfer or other disposition of the Vessel by the
Borrower to any Person (it being understood that a Permitted Chartering Arrangement is not a Collateral Disposition) or the sale of 100% of the Capital Stock of the Borrower or (ii) any Event of Loss of the Vessel.
“
Commitment
” shall mean, for each Lender, the amount denominated in Euro set forth opposite such Lender’s name in
Schedule 1.01(a) hereto as the same may be (x) reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 11 or (y) adjusted from time to time as a result of assignments and/or transfers to or from such Lender pursuant to
Section 2.11 or 13.
“
Commitment Letter
” shall have the meaning provided in Section 14.09.
“
Commitment Termination Date
” shall mean December 8, 2014.
“
Commitment Commission
” shall have the meaning provided in Section 3.01(a).
“
Consolidated Debt Service
” shall mean, for any relevant period, the sum (without double counting), determined in
accordance with GAAP, of:
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(i)
|
the aggregate principal payable or paid during such period on any Indebtedness for Borrowed Money of any member of the NCLC Group, other than:
|
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(a)
|
principal of any such Indebtedness for Borrowed Money prepaid at the option of the relevant member of the NCLC Group or by virtue of “cash sweep” or
“special liquidity” cash sweep provisions (or analogous provisions) in any debt facility of the NCLC Group;
|
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(b)
|
principal of any such Indebtedness for Borrowed Money prepaid upon a sale or an Event of Loss of any vessel owned or leased under a capital lease by any member of the
NCLC Group; and
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(c)
|
balloon payments of any such Indebtedness for Borrowed Money payable during such period (and for the purpose of this paragraph (c) a “balloon payment”
shall not include any scheduled repayment installment of such Indebtedness for Borrowed Money which forms part of the balloon);
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(ii)
|
Consolidated Interest Expense for such period;
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(iii)
|
the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of
the NCLC Group (other than the Parent, or one of its wholly owned
|
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Subsidiaries) or any Dividends other than the tax distributions described in Section 10.03(ii) in each case paid during such period; and
|
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(iv)
|
all rent under any capital lease obligations by which the Parent, or any consolidated Subsidiary is bound which are payable or paid during such period and the portion
of any debt discount that must be amortized in such period,
|
as calculated in accordance with GAAP and derived from the then
latest consolidated unaudited financial statements of the NCLC Group delivered to the Facility Agent in the case of any period ending at the end of any of the first three fiscal quarters of each fiscal year of the Parent and the then latest audited
consolidated financial statements (including all additional information and notes thereto) of the Parent and its consolidated Subsidiaries together with the auditors’ report delivered to the Facility Agent in the case of the final quarter of
each such fiscal year.
“
Consolidated EBITDA
” shall mean, for any relevant period, the aggregate of:
(i) Consolidated Net Income from the Parent’s operations for such period; and
(ii) the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses
from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for such period.
“
Consolidated Interest Expense
” shall mean, for any relevant period, the consolidated interest expense (excluding
capitalized interest) of the NCLC Group for such period.
“
Consolidated Net Income
” shall mean, for any
relevant period, the consolidated net income (or loss) of the NCLC Group for such period as determined in accordance with GAAP.
“
Construction Contract
” shall mean the Shipbuilding Contract (in relation to Hull No. S.678) for the Vessel, dated as of
24 September, 2010, among the Parent, the Borrower and the Yard, as such Shipbuilding Contract may be amended, modified or supplemented from time to time in accordance with the terms thereof and hereof.
“
Construction Risk Insurance
” shall mean any and all insurance policies related to the Construction Contract and the
construction of the Vessel.
“
Credit Documents
” shall mean this Agreement, Sections 7 and 8 of the Commitment
Letter, each Security Document, the Security Trust Deed, any Transfer Certificate, any Assignment Agreement, the Intercreditor Agreement, the Interaction Agreement and, after the execution and delivery thereof, each additional guaranty or additional
security document executed pursuant to Section 9.10.
-9-
“
Credit Document Obligations
” shall mean, except to the extent consisting
of obligations, liabilities or indebtedness with respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, principal, premium, interest, fees and indemnities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding)) of each Credit Party to
the Lender Creditors (
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned obligations, liabilities and indebtedness shall arise only for such Lenders (in such capacity) in respect of Loans and/or Commitments),
whether now existing or hereafter incurred under, arising out of, or in connection with this Agreement and the other Credit Documents to which such Credit Party is a party (including, in the case of each Credit Party that is a Guarantor, all such
obligations, liabilities and indebtedness of such Credit Party under the Parent Guaranty) and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained in this Agreement and in such other
Credit Documents.
“
Credit Party
” shall mean the Borrower, the Parent and each Subsidiary of the Parent that
owns a direct interest in the Borrower.
“
Default
” shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
“
Defaulting Lender
” shall mean any Lender
with respect to which a Lender Default is in effect.
“
Delegate Collateral Agent
” shall mean Deutsche
Schiffsbank Aktiengesellschaft in its capacity as trustee for the Secured Creditors with respect to the Trust Property Delegated (as defined in the Security Trust Deed) pursuant to the Security Trust Deed.
“
Delivery Date
” shall mean the date of delivery of the Vessel to the Borrower, which, as of the Effective Date, is
scheduled to occur in April 2014.
“
Discharged Rights and Obligations
” shall have the meaning provided in
Section 13.06(c).
“
Dispute
” shall have the meaning provided in Section 14.07(a).
“
Disqualified Stock
” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the
terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale),
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock of such Person, or
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(3) is redeemable at the option of the holder thereof, in whole or in part
(other than solely as a result of a change of control or asset sale), in each case prior to 91 days after the Maturity Date;
provided
,
however
, that only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided
,
however
, that if such Capital Stock is issued to any
employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the
Parent in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided
,
further
, that any class of Capital Stock of such Person that by
its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“
Disruption Event
” means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each
case, required to operate in order for payments to be made in connection with this Agreement (or otherwise in order for the transactions contemplated by the Credit Documents to be carried out) which disruption is not caused by, and is beyond the
control of, any of the parties to this Agreement; or
(b) the occurrence of any other event which results in a
disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this Agreement preventing such party, or any other party to this Agreement:
(i) from performing its payment obligations under the Credit Documents; or
(ii) from communicating with other parties to this Agreement in accordance with the terms of the Credit Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations
are disrupted.
“
Dividend
” shall mean, with respect to any Person, that such Person or any Subsidiary of such
Person has declared or paid a dividend or returned any equity capital to its stockholders, partners or members or the holders of options or warrants issued by such Person with respect to its Capital Stock or membership interests or authorized or
made any other distribution, payment or delivery of property (other than common stock or the right to purchase any of such stock of such Person) or cash to its stockholders, partners or members or the holders of options or warrants issued by such
Person with respect to its Capital Stock or membership interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its Capital Stock or any other Capital Stock
outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests), or set aside any funds for any of the
-11-
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the Capital Stock or any other Equity Interests
of such Person outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests). Without limiting the foregoing, “Dividends” with respect to any
Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing
purposes.
“
Documentation Agent
” shall have the meaning provided in the first paragraph of this Agreement,
and shall include any successor thereto.
“
Dollars
” and the sign “
$
” shall each mean lawful
money of the United States.
“
Dollar Equivalent
” shall mean, with respect to the Euro denominated Commitments
being utilized on a Borrowing Date, the amount calculated by applying (x) in the event that the Borrower and/or the Parent have entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be partially or
wholly financed by the Loans to be disbursed on such Borrowing Date, the EUR/USD weighted average rate with respect to such Borrowing Date (i) as notified by the Borrower to the Facility Agent in the Borrowing Notice at least three Business
Days prior to the relevant Borrowing Date, (ii) which EUR/USD weighted average rate for any particular set of Earmarked Foreign Exchange Arrangements shall take account of all applicable foreign exchange spot, forward and derivative
arrangements, including collars, options and the like, entered into in respect of such Borrowing Date and (iii) for which the Borrower has provided evidence to the Facility Agent to determine which foreign exchange arrangements (including spot
transactions) will be the Earmarked Foreign Exchange Arrangements that shall apply to such Borrowing Date and (y) in the event that the Borrower and/or the Parent have not entered into Earmarked Foreign Exchange Arrangements with respect to the
installment payment to be partially or wholly funded by the Loans to be disbursed on such Borrowing Date, the Spot Rate applicable to such Borrowing Date.
“
Dormant Subsidiary
” means a Subsidiary that owns assets in an amount equal to no more than $5,000,000 or is dormant or otherwise inactive.
“
Earmarked Foreign Exchange Arrangements
” shall mean the Euro/Dollar foreign exchange arranged by the Borrower and/or
the Parent in connection with an installment payment to be partially or wholly financed by the Loans to be disbursed on the date on which such installment payment is to be made.
“
Earnings and Insurance Collateral
” shall mean all “Earnings Collateral” and “Insurance Collateral”,
as the case may be, as defined in the respective Assignment of Earnings and the Assignment of Insurances.
“
Effective
Date
” has the meaning specified in Section 14.09.
-12-
“
Eligible Transferee
” shall mean and include a commercial bank, insurance
company, financial institution, fund or other Person which regularly purchases interests in loans or extensions of credit of the types made pursuant to this Agreement.
“
Environmental Approvals
” shall have the meaning provided in Section 8.17(b).
“
Environmental Claims
” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or
violation, relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “
Claims
”), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.
“
Environmental Law
” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation,
ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, to the extent binding on the Parent or any of its Subsidiaries, relating to the environment, and/or Hazardous Materials, including, without limitation, CERCLA; OPA; the Federal Water
Pollution Control Act, 33 U.S.C. § 1251
et
seq
.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et
seq
.; the Occupational Safety and Health Act, 29 U.S.C. § 651
et
seq
. (to the extent it regulates occupational exposure to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“
Environmental Release
” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing or migration into the environment.
“
Equity Interests
” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“
Euro
” and the sign “
€
” shall each mean single currency in the member states of the European Communities that adopt or have adopted the Euro as its lawful currency
under the legislation of the European Union for European Monetary Union.
“
Eurodollar Rate
” shall mean the
offered rate (rounded upward to the nearest 1/100 of 1%) for deposits of Dollars for a period equivalent to the applicable interest period at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of the applicable
interest period as is displayed on Reuters LIBOR 01 Page (or such other service as may be nominated by the British Bankers’ Association as the information vendor for displaying the London Interbank Offered Rates of major banks in the London
Interbank Market) (the
-13-
“
Screen Rate
”),
provided
that if on such date no such rate is so displayed, the Eurodollar Rate for such period shall be the arithmetic average (rounded upward to the
nearest 1/100 of 1%) of the rate quoted to the Facility Agent by the Reference Banks for deposits of Dollars in an amount approximately equal to the amount in relation to which the Eurodollar Rate is to be determined for a period equivalent to such
interest period by the prime banks in the London interbank Eurodollar market at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of such period, in each case rounded upward to the nearest 1/100 of 1%.
“
Event of Default
” shall have the meaning provided in Section 11.
“
Event of Loss
” shall mean any of the following events: (x) the actual or constructive total loss of the Vessel or
the agreed or compromised total loss of the Vessel; or (y) the capture, condemnation, confiscation, requisition (but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons
acting or purporting to act on behalf of any such government or governmental authority or agency), purchase, seizure or forfeiture of, or any taking of title to, the Vessel. An Event of Loss shall be deemed to have occurred: (i) in the event of
an actual loss of the Vessel, at the time and on the date of such loss or if such time and date are not known at noon Greenwich Mean Time on the date which the Vessel was last heard from; (ii) in the event of damage which results in a
constructive or compromised or arranged total loss of the Vessel, at the time and on the date on which notice claiming the loss of the Vessel is given to the insurers; or (iii) in the case of an event referred to in clause (y) above, at
the time and on the date on which such event is expressed to take effect by the Person making the same. Notwithstanding the foregoing, if the Vessel shall have been returned to the Borrower or any Subsidiary of the Borrower following any event
referred to in clause (y) above prior to the date upon which payment is required to be made under Section 4.02(b) hereof, no Event of Loss shall be deemed to have occurred by reason of such event so long as the requirements set forth in
Section 9.10 have been satisfied.
“
Excluded Taxes
” shall have the meaning provided in
Section 4.04(a).
“
Existing Lender
” shall have the meaning provided in Section 13.01.
“
Facility Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any
successor thereto.
“
Facility Office
” means (a) in respect of a Lender, the office or offices notified
by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations
under this Agreement; or (b) in respect of any other Lender Creditor, the office in the jurisdiction in which it is resident for tax purposes.
“
Final Construction Price
” shall mean the actual final construction price of the Vessel.
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“
Flag Jurisdiction Transfer
” shall mean the transfer of the registration
and flag of the Vessel from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction,
provided
that the following conditions are satisfied with respect to such transfer:
(i) On each Flag Jurisdiction Transfer Date, the Borrower shall have duly authorized, executed and delivered, and caused
to be recorded in the appropriate vessel registry a Vessel Mortgage that is reasonably satisfactory in form and substance to the Facility Agent with respect to the Vessel and such Vessel Mortgage shall be effective to create in favor of the
Collateral Agent and/or the Lenders a legal, valid and enforceable first priority security interest, in and lien upon the Vessel, subject only to Permitted Liens. All filings, deliveries of instruments and other actions necessary or desirable in the
reasonable opinion of the Collateral Agent to perfect and preserve such security interests shall have been duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral
Agent.
(ii) On each Flag Jurisdiction Transfer Date, to the extent that any Security Documents are released or
discharged pursuant to Section 14.21(b), the Borrower shall have duly authorized, executed and delivered corresponding Security Documents in favor of the Collateral Agent for the new Acceptable Flag Jurisdiction.
(iii) On each Flag Jurisdiction Transfer Date, the Facility Agent shall have received from counsel, an opinion addressed
to the Facility Agent and each of the Lenders and dated such Flag Jurisdiction Transfer Date, which shall (x) be in form and substance reasonably acceptable to the Facility Agent and (y) cover the recordation of the security interests
granted pursuant to the Vessel Mortgage to be delivered on such date and such other matters incident thereto as the Facility Agent may reasonably request.
(iv) On each Flag Jurisdiction Transfer Date:
(A) The Facility
Agent shall have received (x) certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of the Vessel transferred on such date by the
Borrower and (y) the results of maritime registry searches with respect to the Vessel transferred on such date, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens.
(B) The Facility Agent shall have received a report, in form and scope reasonably satisfactory to the Facility Agent, from
a firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained by the Credit Party in respect of the Vessel transferred on such date, together with a certificate from another
broker certifying that such insurances (i) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for
the protection of the Facility Agent and/or the Lenders as mortgagee and (ii) conform with the Required Insurance applicable to the Vessel.
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(v) On or prior to each Flag Jurisdiction Transfer Date, the Facility Agent
shall have received a certificate, dated the Flag Jurisdiction Transfer Date, signed by any one of the chairman of the board, the president, any vice president, the treasurer or an authorized manager, member, general partner, officer or
attorney-in-fact of the Borrower, certifying that (A) all necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the Flag Jurisdiction Transfer being consummated on such date and otherwise
referred to herein shall have been obtained and remain in effect or that no such approvals and/or consents are required, (B) there exists no judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions
upon such Flag Jurisdiction Transfer or the other related transactions contemplated by this Agreement and (C) copies of resolutions approving the Flag Jurisdiction Transfer of the Borrower and any other related matters the Facility Agent may
reasonably request.
(vi) On each Flag Jurisdiction Transfer Date, the Collateral and Guaranty Requirements for
the Transferred Collateral Vessel shall have been satisfied or waived by the Facility Agent for a specific period of time.
“
Flag Jurisdiction Transfer Date
” shall mean the date on which a Flag Jurisdiction Transfer occurs.
“
Free Liquidity
” shall mean, at any date of determination, the aggregate of the Cash Balance and any Commitments under
this Agreement or any other amounts available for drawing under other revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would
not, if drawn, be repayable within six months.
“
GAAP
” shall have the meaning provided in
Section 14.06(a).
“
Grace Period
” shall have the meaning provided in Section 11.05(c).
“
Guarantor
” shall mean Parent.
“
Hazardous Materials
” shall mean: (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,”
or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under
Environmental Laws.
“
Hermes
” shall mean the Federal Republic of Germany represented by the Federal Ministry
of Economics and Technology (
Bundesministerium für Wirtschaft und Technologie
) represented by Euler Hermes Kreditversicherungs-AG and PriceWaterhouseCoopers Wirtschaftsprüfungsgesellschaft AG.
-16-
“
Hermes Agent
” shall have the meaning provided in the first paragraph of
this Agreement, and shall include any successor thereto, acting as attorney-in-fact for the Lenders with respect to the Hermes Cover to the extent described in this Agreement.
“
Hermes Cover
” shall mean the export credit guarantee (
Exportkreditgarantie
) on the terms of Hermes’ Declaration of Guarantee (
Gewährleistungs-Erklärung
) for
[*] of the principal amount of the Loans and any interests and secondary financing costs of the Federal Republic of Germany acting through Euler Hermes Kreditversicherungs-AG for the period of the Loans on the terms and conditions applied for by the
Lenders, and shall include any successor thereto (it being understood that the Hermes Cover shall be issued on the basis of Hermes’ applicable Hermes guidelines (
Richtlinien
) and general terms and conditions (
Allgemeine
Bedingungen
)).
“
Hermes Insurance Premium
” shall mean the amount payable in Euro by the Borrower to
Hermes through the Hermes Agent in respect of the Hermes Cover, which shall not exceed [*].
“
Hermes Issuing
Fees
” shall mean the [*] payable in Euro by the Borrower to Hermes through the Hermes Agent by way of handling fees in respect of the Hermes Cover.
“
Hermes Premium
” shall mean the aggregate of the Hermes Issuing Fees and the Hermes Insurance Premium.
“
Impaired Agent
” shall mean an Agent at any time when:
|
|
(i)
|
it has failed to make (or has notified a party to this Agreement that it will not make) a payment required to be made by it under the Credit Documents by the due date
for payment;
|
|
|
(ii)
|
such Agent otherwise rescinds or repudiates a Credit Document;
|
|
|
(iii)
|
(if such Agent is also a Lender) it is a Defaulting Lender; or
|
|
|
(iv)
|
an Insolvency Event has occurred and is continuing with respect to such Agent
|
unless, in the case of paragraph (i) above: (a) its failure to pay is caused by administrative or technical error or a Disruption Event, and payment is made within five Business Days of its due
date; or (b) such Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
“
Indebtedness
” shall mean any obligation for the payment or repayment of money, whether as principal or as surety and
whether present or future, actual or contingent including, without limitation, pursuant to an Interest Rate Protection Agreement or Other Hedging Agreement.
-17-
“
Indebtedness for Borrowed Money
” shall mean Indebtedness (whether present
or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of:
|
|
(i)
|
moneys borrowed or raised;
|
|
|
(ii)
|
the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing);
|
|
|
(iii)
|
the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases;
|
|
|
(iv)
|
the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of 180 days;
|
|
|
(v)
|
all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and
|
|
|
(vi)
|
(without double counting) any guarantee of Indebtedness falling within paragraphs (i) to (v) above;
|
provided
that the following shall not constitute Indebtedness for Borrowed Money:
|
|
(a)
|
loans and advances made by other members of the NCLC Group which are subordinated to the rights of the Lenders;
|
|
|
(b)
|
loans and advances made by any shareholder of the Parent which are subordinated to the rights of the Lenders on terms reasonably satisfactory to the Facility Agent; and
|
|
|
(c)
|
any liabilities of the Parent or any other member of the NCLC Group under any Interest Rate Protection Agreement or any Other Hedging Agreement or other derivative
transactions of a non-speculative nature.
|
“
Information
” shall have the meaning provided in
Section 8.10(a).
“
Initial Borrowing Date
” shall mean the date occurring on or after the Effective Date
on which the initial Borrowing of Loans hereunder occurs, which date shall coincide with the date of payment of the first installment of the Initial Construction Price for the Vessel under the Construction Contract.
“
Initial Construction Price
” shall mean an amount of up to €615,000,000 for the construction of the Vessel pursuant
to the Construction Contract, payable by the Borrower to the Yard through the four installments of the Initial Contract Price referred to in Article 8, Clauses 2.1(i) through and including (iv) of the
Construction Contract (each, a “
Pre-delivery Installment
”) and the installment of the Initial Contract Price referred to in Article 8, Clause 2.1(v) of the Construction Contract.
“
Insolvency Event
” in relation to any of the parties to this Agreement shall mean that such party:
-18-
|
|
(i)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(ii)
|
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
|
(iii)
|
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
|
(iv)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it
in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
|
(v)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a
person or entity not described in paragraph (iv) above and (a) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or (b) is not dismissed,
discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
|
(vi)
|
has exercised in respect of it one or more of the stabilization powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency
proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
|
|
(vii)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(viii)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets;
|
|
|
(ix)
|
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
-19-
|
|
(x)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in
paragraphs (i) to (ix) above; or
|
|
|
(xi)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
“
Interaction Agreement
” shall mean the interaction agreement executed by,
inter
alia
(i) each Lender
that elects to become a Refinanced Bank, (ii) KfW as CIRR mandatary, and (iii) the CIRR Agent substantially in the form of Exhibit C.
“
Intercreditor Agreement
” shall mean the Intercreditor Deed executed by,
inter
alia
, (i) each Lender, each other Secured Creditor, the Collateral Agent, the
Documentation Agent and the Hermes Agent, (ii) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent, and the borrower under the Jade Credit Facility, (iii) each lender, each other
secured creditor, the collateral agent, the documentation agent and the Hermes agent under the Jewel Credit Facility and (iv) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by
the Borrower and the Guarantor substantially in the form of Exhibit N.
“
Interest Period
” shall mean each six
month period commencing on a Payment Date and ending on the immediately succeeding Payment Date.
“
Interest Rate
Protection Agreement
” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into
between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliate, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this Agreement.
“
Investments
” shall have the meaning provided in Section 10.04.
“
Jade Credit Facility
” shall mean the delayed-draw term loan facility (in a maximum amount not to exceed the sum of the
commitments thereunder and under the Jewel Credit Facility on the Effective Date), dated as of the date hereof, among Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, the Facility Agent, the Collateral
Agent, the Documentation Agent and the Hermes Agent, which shall (i) be secured by the Norwegian Jade vessel and (ii) indirectly finance, in part, the construction and acquisition costs of the Vessel.
“
Jewel Credit Facility
” shall mean the delayed-draw term loan facility (in a maximum amount not to exceed the sum of the
commitments thereunder and under the Jade Credit Facility on the Effective Date), dated as of the date hereof, among Norwegian Jewel Limited, as borrower, the Parent, the lenders from time to time party thereto, the Facility Agent, the Collateral
Agent, the Documentation Agent and the Hermes Agent, which shall (i) be secured by the Norwegian Jewel vessel and (ii) indirectly finance, in part, the construction and acquisition costs of the Vessel.
-20-
“
Joint Lead Arrangers
” shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
“
KfW
” shall mean KfW in its capacity
as refinancing bank with respect to the KfW Refinancing.
“
KfW Refinancing
” shall mean the refinancing of the
respective loans of the Refinanced Banks hereunder with KfW pursuant to the CIRR General Terms and Conditions, as modified by the parties to the KfW Refinancing pursuant to,
inter
alia
, the Interaction Agreement.
“
Lender
” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person which becomes a
“
Lender
” hereunder pursuant to Section 13.
“
Lender Creditors
” shall mean the Lenders
holding from time to time outstanding Loans and/or Commitments and the Agents, each in their respective capacities.
“
Lender Default
” shall mean, as to any Lender, (i) the wrongful refusal (which has not been retracted) of such
Lender or the failure of such Lender to make available its portion of any Borrowing, unless such failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three Business Days of its due date;
(ii) such Lender having been deemed insolvent or having become the subject of a takeover by a regulatory authority or with respect to which an Insolvency Event has occurred and is continuing; (iii) such Lender having notified the Facility
Agent and/or any Credit Party (x) that it does not intend to comply with its obligations under Section 2.01 in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under such Section or
(y) of the events described in preceding clause (ii); or (iv) such Lender not being in compliance with its refinancing obligations owed to KfW under its respective Refinancing Agreement or the Interaction Agreement.
“
Lien
” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing);
provided
that in no event shall an operating lease be deemed to constitute a Lien.
“
Lim Family
” shall mean:
|
|
(i)
|
the late Tan Sri Lim Goh Tong;
|
|
|
(iii)
|
his direct lineal descendants;
|
-21-
|
|
(iv)
|
the personal estate of any of the above persons; and
|
|
|
(v)
|
any trust created for the benefit of one or more of the above persons and their estates.
|
“
Loan
” shall have the meaning provided in Section 2.01.
“
Management Agreements
” shall mean any agreements entered into by the Borrower with the Manager or such other commercial
manager and/or a technical manager with respect to the management of the Vessel, in each case which agreements and manager shall be reasonably acceptable to the Facility Agent (it being understood that NCL (Bahamas) Ltd. is acceptable and the form
of management agreement attached as Annex A to Exhibit O is acceptable).
“
Manager
” shall mean the company
providing commercial and technical management and crewing services for the Vessel pursuant to the Management Agreements, which is contemplated to be, as of the Delivery Date, NCL (Bahamas) Ltd., a company organized and existing under the laws of
Bermuda.
“
Manager’s Undertakings
” shall mean the undertakings, provided by the Manager respecting the
Vessel, including,
inter
alia
, a statement satisfactory to the Facility Agent that any lien in favor of the Manager respecting the Vessel is subject and subordinate to the Vessel Mortgage in substantially the form attached to the
Assignment of Management Agreements or otherwise reasonably satisfactory to the Facility Agent.
“
Mandatory
Costs
” means the percentage rate per annum calculated in accordance with
Schedule 1.01(b)
.
“
Material
Adverse Effect
” shall mean the occurrence of anything since June 30, 2010 which has had or would reasonably be expected to have a material adverse effect on (x) the property, assets, business, operations, liabilities, or condition
(financial or otherwise) of the Parent and its subsidiaries taken as a whole, (y) the consummation of the transactions hereunder, the acquisition of the Vessel and the Construction Contract, or (z) the rights or remedies of the Lenders, or
the ability of the Parent and its relevant Subsidiaries to perform their obligations owed to the Lenders and the Agents under this Agreement.
“
Materials of Environmental Concern
” shall have the meaning provided in Section 8.17(a).
“
Maturity Date
” shall mean the twelfth anniversary of the Borrowing Date in relation to the Delivery Date.
“
Moody’s
” shall mean Moody’s Investors Service, Inc. and its successors.
“
NCLC Fleet
” shall mean the vessels owned by the companies in the NCLC Group.
“
NCLC Group
” shall mean the Parent and its Subsidiaries.
-22-
“
New Lender
” shall mean a Person who has been assigned the rights or
transferred the rights and obligations of an Existing Lender, as the case may be, pursuant to the provisions of Section 13.
“
Non-Defaulting Lender
” shall mean and include each Lender other than a Defaulting Lender.
“
Notice of Borrowing
” shall have the meaning provided in Section 2.03.
“
Notice Office
” shall mean (x) in the case of the Facility Agent, the office of the Facility Agent located at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, Attention:
Ship Finance, X2a4, Claudia Wenzel, fax: +49 69 7431 2944, email: claudia.wenzel@kfw.de or such other office as the Facility Agent may hereafter designate in writing as such to the other parties hereto and (y) in the case of the Hermes
Agent, the office of the Hermes Agent located at Kaiserplatz / Kaiserstr. 16, D-60311 Frankfurt am Main, Germany, Attention: Corporate Banking, Structured Export & Trade Finance, Klaus-Dieter Schmedding, fax: +49 69 136 23742, email
Klaus-dieter.schmedding@commerzbank.com (with an additional copy to exportfinance@commerzbank.com) or such other office as the Hermes Agent may hereafter designate in writing as such to the other parties hereto.
“
OPA
” shall mean the Oil Pollution Act of 1990, as amended, 33 U.S.C. § 2701
et
seq
.
“
Other Creditors
” shall mean any Lender or any Affiliate thereof and their successors, transferees and assigns if any
(even if such Lender subsequently ceases to be a Lender under this Agreement for any reason), together with such Lender’s or Affiliate’s successors, transferees and assigns, with which the Parent and/or the Borrower enters into any
Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Other Export Credit
Documents
” shall mean the “Credit Documents” as defined in the Other Export Credit Facility.
“
Other Export Credit Facility
” shall mean the delayed-draw term loan facility, dated as of the date hereof, among
Breakaway One, Ltd., as borrower, the Parent, the lenders from time to time party thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent, which shall finance, in part, the construction and acquisition costs
of the post-panamax luxury passenger cruise vessel with the provisional hull number S.692 to be constructed by the Yard.
“
Other Hedging Agreement
” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or
other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliates, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this
Agreement and designed to protect against the fluctuations in currency or commodity values.
“
Other
Obligations
” shall mean the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest that accrues after the
commencement of any case,
-23-
proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective documentation, whether or
not a claim for post-petition interest is allowed in any such proceeding) owing by any Credit Party to the Other Creditors under, or with respect to, any Interest Rate Protection Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence or hereafter arising, and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained therein.
“
Parent
” shall have the meaning provided in the first paragraph of this Agreement.
“
Parent Guaranty
” shall mean the guaranty of the Parent pursuant to Section 15.
“
PATRIOT Act
” shall have the meaning provided in Section 14.09.
“
Payment Date
” shall mean the last Business Day of each December and June, commencing with December, 2010.
“
Payment Office
” shall mean the office of the Facility Agent located at Palmengartenstrasse 5-9, 60325 Frankfurt am
Main, Germany, or such other office as the Facility Agent may hereafter designate in writing as such to the other parties hereto.
“
Permitted Change Orders
” shall mean change orders and similar arrangements under the Construction Contract which increase the Initial Construction Price to the extent that the aggregate
amount of such increases does not exceed [*] of the Initial Construction Price (it being understood that the actual amount of change orders and similar arrangements may exceed [*] of the Initial Construction Price).
“
Permitted Chartering Arrangements
” shall mean:
|
|
(i)
|
any charter or other form of deployment (other than a demise or bareboat charter) of the Vessel made between members of the NCLC Group;
|
|
|
(ii)
|
any demise or bareboat charter of the Vessel made between members of the NCLC Group provided that (a) each of the Borrower and the charterer assigns the benefit of
any such charter or sub-charter to the Collateral Agent, (b) each of the Borrower and the charterer assigns its interest in the insurances and earnings in respect of the Vessel to the Collateral Agent, and (c) the charterer agrees to
subordinate its interests in the Vessel to the interests of the Collateral Agent as mortgagee of the Vessel, all on terms and conditions reasonably acceptable to the Collateral Agent;
|
|
|
(iii)
|
any charter or other form of deployment of the Vessel to a charterer that is not a member of the NCLC Group provided that no such charter or deployment shall be made
(a) on a demise or bareboat basis, or (b) for a period which, with the exercise of any options for extension, could be for longer than 13 months, or (c) other than at or about market rate at the time when the charter or deployment is
fixed; and
|
-24-
|
|
(iv)
|
any charter or other form of deployment in respect of the Vessel entered into after the Effective Date and which is permissible under the provisions of any financing
documents relating to the Vessel.
|
“
Permitted Holders
” shall mean (i) the Lim Family
(together or individually) and (ii) Apollo and any Person directly controlled by Apollo.
“
Permitted
Liens
” shall have the meaning provided in Section 10.01.
“
Person
” shall mean any individual,
partnership, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision, department or instrumentality thereof.
“
Pledgor
” shall mean NCL Corporation Ltd. or any direct or indirect Subsidiary of the Parent which directly owns any of the Capital Stock of the Borrower.
“
Pre-delivery Installment
” shall have the meaning provided in the definition of “
Initial Construction
Price
”.
“
Pro Rata Share
” shall have the definition provided in Section 4.05.
“
Projections
” shall mean any projections and any forward-looking statements (including statements with respect to booked
business) of the NCLC Group furnished to the Lenders or the Facility Agent by or on behalf of any member of the NCLC Group prior to the Effective Date.
“
Qualified IPO
” means an initial public offering of the Parent or a parent company of the Parent in either case on an Approved Stock Exchange resulting in at least [*] of equity
(x) in the case of an initial public offering by a parent company of the Parent, being contributed to the Parent or (y) in the case of an initial public offering by the Parent, sold by the Parent.
“
Reference Banks
” shall mean each Joint Lead Arranger.
“
Refinancing Agreement
” shall mean each refinancing agreement in respect of the KfW Refinancing.
“
Refinanced Bank
” shall mean each Lender participating in the KfW Refinancing.
“
Refund Guarantee
” shall mean a refund guarantee arranged by the Yard in respect of a Pre-delivery Installment and
provided by one or more financial institutions contemplated by the Construction Contract, or by other financial institutions reasonably satisfactory to the Joint Lead Arrangers, as credit support for the Yard’s obligations thereunder.
“
Register
” shall have the meaning provided in Section 14.15.
“
Relevant Obligations
” shall have the meaning provided in Section 13.07(c)(ii).
-25-
“
Replaced Lender
” shall have the meaning provided in Section 2.11.
“
Replacement Lender
” shall have the meaning provided in Section 2.11.
“
Representative
” shall have the meaning provided in Section 4.05(d).
“
Required Insurance
” shall have the meaning provided in Section 9.03.
“
Required Lenders
” shall mean, at any time, Non-Defaulting Lenders, the sum of whose outstanding
Commitments and/or principal amount of Loans at such time represent an amount greater than 66-
2
/
3
% of the sum of the Total Commitment (
less
the aggregate Commitments of all Defaulting Lenders at such time) and the aggregate principal amount of outstanding Loans (less the amount of outstanding
Loans of all Defaulting Lenders at such time).
“
S&P
” shall mean Standard & Poor’s
Rating Services, a division of the McGraw-Hill Companies, Inc., and its successors.
“
Scheduled Repayment
”
shall have the meaning provided in Section 4.02(a).
“
Screen Rate
” shall have the meaning specified in
the definition of Eurodollar Rate.
“
Secured Creditors
” shall mean the “Secured Creditors” as
defined in the Security Documents.
“
Secured Obligations
” shall mean (i) the Credit Document
Obligations, (ii) the Other Obligations, (iii) any and all sums advanced by any Agent in order to preserve the Collateral or preserve the Collateral Agent’s security interest in the Collateral on behalf of the Lenders, (iv) in
the event of any proceeding for the collection or enforcement of any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after an Event of Default shall have occurred and be continuing,
the expenses in connection with retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder on behalf of the Lenders, together
with reasonable attorneys’ fees and court costs, and (v) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under the Security Documents.
“
Security Documents
” shall mean, as applicable, the Assignment of Contracts, the Assignment of Earnings, the Assignment
of Charters, the Assignment of Insurances, the Assignment of Management Agreements, the Assignment of KfW Refund Guarantees, the Share Charge, the Vessel Mortgage, the Deed of Covenants, and, after the execution thereof, each additional security
document executed pursuant to Section 9.10 and/or 12.01(b).
“
Security Trust Deed
” shall mean the
Security Trust Deed executed by,
inter
alia
, the Borrower, the Guarantor, the Collateral Agent, the Facility Agent, the Original Secured Creditors (as defined therein) and the Delegate Collateral Agent, and shall be substantially
in the form of Exhibit P or otherwise reasonably acceptable to the Facility Agent.
-26-
“
Share Charge
” shall have the meaning provided in Section 5.06.
“
Share Charge Collateral
” shall mean all “Collateral” as defined in the Share Charge.
“
Specified Requirements
” shall mean the requirements set forth in clauses (i)(A) and (i)(B) (excluding, for the
avoidance of doubt, clauses (i)(a) or (i)(b)), (iii), (v)(c) and (v)(f) of the definition of “Collateral and Guaranty Requirements.”
“
Spot Rate
” shall mean the spot exchange rate quoted by the Facility Agent equal to the weighted average of the rates on the actual transactions of the Facility Agent on
the date two Business Days prior to the date of determination thereof (acting reasonably), which spot exchange rate shall be final and conclusive absent manifest error.
“
Subsidiary
” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by
such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50%
Equity Interest at the time.
“
Supervision Agreements
” shall mean any agreements (if any) entered or to be
entered into between the Parent, as applicable, the Borrower and a Supervisor providing for the construction supervision of the Vessel, the terms and conditions of which shall be in form and substance reasonably satisfactory to the Facility Agent.
“
Supervisor
” shall have the meaning provided in the Construction Contract.
“
Tax Benefit
” shall have the meaning provided in Section 4.04(c).
“
Taxes
” and “
Taxation
” shall have the meaning provided in Section 4.04(a).
“
Term Loan Credit Documents
” shall mean the “Credit Documents” as defined in Term Loan Facilities.
“
Term Loan Facilities
” shall mean collectively, the Jewel Credit Facility and the Jade Credit Facility.
“
Test Period
” shall mean each period of four consecutive fiscal quarters then last ended, in each case taken as one
accounting period.
“
Third Party
” shall mean any Person or group of Persons acting in concert who or which
does not include a member of the Lim Family or Apollo.
-27-
“
Total Capitalization
” shall mean, at any date of determination, the Total
Net Funded Debt
plus
the consolidated stockholders’ equity of the NCLC Group at such date determined in accordance with GAAP and derived from the then latest unaudited and consolidated financial statements of the NCLC Group delivered to
the Facility Agent in the case of the first three quarters of each fiscal year and the then latest audited consolidated financial statements of the NCLC Group delivered to the Facility Agent in the case of each fiscal year;
provided
it is
understood that the effect of any impairment of intangible assets shall be added back to stockholders’ equity.
“
Total Commitment
” shall mean, at any time, the sum of the Commitments of the Lenders at such time. On the Effective
Date, the Total Commitments equal €529,846,154.
“
Total Net Funded Debt
” shall mean, as at any relevant
date:
(i) Indebtedness for Borrowed Money of the NCLC Group on a consolidated basis; and
(ii) the amount of any Indebtedness for Borrowed Money of any person which is not a member of the NCLC Group but which is
guaranteed by a member of the NCLC Group as at such date;
less
an amount equal to any Cash Balance as at such date;
provided
that any Commitments and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group which remain undrawn shall not be counted as cash or indebtedness for the purposes of this Agreement.
“
Transaction
” shall mean collectively (i) the execution, delivery and performance by each Credit Party
of the Credit Documents to which it is a party, the incurrence of Loans on each Borrowing Date and the use of proceeds thereof, (ii) the execution, delivery and performance by the relevant credit parties party to the Other Export Credit
Documents to which they are a party, the incurrence of the loans thereunder and the use of proceeds thereof, (iii) the execution, delivery and performance by the relevant credit parties party to the Term Loan Credit Documents to which they are
a party, the incurrence of the loans thereunder and the use of proceeds thereof and (iv) the payment of all fees and expenses in connection with the foregoing.
“
Transfer Certificate
” means a certificate substantially in the form set out in Exhibit E or any other form agreed between the Facility Agent and the Parent.
“
UCC
” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
“
United States
” and “
U.S.
” shall each mean the United States of America.
“
Vessel
” shall mean the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the
provisional hull number S.692 to be constructed by the Yard.
“
Vessel Mortgage
” shall have the meaning
provided in the definition of “Collateral and Guaranty Requirements”.
“
Vessel Value
” shall have
the meaning set forth in Section 10.08.
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“
Yard
” shall mean Meyer Werft GmbH, Papenburg/Germany, the shipbuilder
constructing the Vessel pursuant to the Construction Contract.
SECTION 2.
Amount and Terms of Credit Facility
.
2.01
The Commitments
. Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to
make on and after the Initial Borrowing Date and prior to the Commitment Termination Date and at the times specified in Section 2.02 term loans to the Borrower (each, a “
Loan
” and, collectively, the “
Loans
”),
which Loans (i) shall bear interest in accordance with Section 2.06, (ii) shall be denominated and repayable in Dollars, (iii) shall be disbursed on any Borrowing Date, (iv) shall not exceed on such Borrowing Date for all
Lenders the Dollar Equivalent of the maximum available amount for such Borrowing Date as set forth in Section 2.02 and (v) disbursed on any Borrowing Date shall not exceed for any Lender the Dollar Equivalent of the Commitment of such
Lender on such Borrowing Date.
2.02
Amount and Timing of Each Borrowing; Currency of Disbursements
. (a) The Total
Commitments will be available in the amounts and on the dates set forth below:
(i) a portion of the Total
Commitments not exceeding 4% of the Initial Construction Price for the Vessel will be available on the Initial Borrowing Date;
(ii) a portion of the Total Commitments equaling 100% of the Hermes Premium (but, in no event shall more than [*] of the proceeds of Loans be used to pay the Hermes Premium) will be available on one or
more dates on or after the Initial Borrowing Date (it being understood and agreed that the Lenders shall be authorized to disburse directly to Hermes the proceeds of Loans in an amount equal to the Hermes Premium that is then due and owing, without
any action on the part of the Borrower (including, without limitation, without delivery by the Borrower of a Notice of Borrowing to the Facility Agent in respect thereof), so long as the Facility Agent provides the Borrower with notice thereof);
(iii) a portion of the Total Commitments not exceeding 4% of the Initial Construction Price for the Vessel
will be available on the date of payment of the second installment of the Initial Construction Price (which date is anticipated to be 24 months prior to the Delivery Date (as per the Construction Contract));
(iv) a portion of the Total Commitments not exceeding 4% of the Initial Construction Price for the Vessel will be
available on the date of payment of the third installment of the Initial Construction Price for the Vessel (which date is anticipated to be 18 months prior to the Delivery Date (as per the Construction Contract));
(v) a portion of the Total Commitments not exceeding 4% of the Initial Construction Price for the Vessel will be available
on the date of payment of the fourth installment of the Initial Construction Price for the Vessel (which date is anticipated to be 12 months prior to the Delivery Date (as per the Construction Contract); and
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(vi) a portion of the Total Commitments not exceeding the sum of
(a) 64% of the Initial Construction Price for the Vessel (
plus
, if applicable, any amounts that were available pursuant to clauses (i) and (iii)-(v) above but not borrowed, subject to an overall cap of 80% of the Initial
Construction Price for the Vessel) and (b) 80% of the aggregate amount of the Permitted Change Orders will be available on the Delivery Date.
(b) The Loans made on each Borrowing Date shall be disbursed by the Facility Agent to the Borrower and/or its designees, as set forth in Section 2.04, in Dollars and shall be in an amount equal to
the Dollar Equivalent of the amount of the Total Commitment utilized to make such Loans on such Borrowing Date pursuant to this Section 2.02,
provided
that in the event that the Borrower has not (i) notified the Facility Agent in
the Notice of Borrowing that it has entered into Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes or to the Yard on such Borrowing Date and (ii) provided reasonably sufficient evidence to the
Facility Agent of such Earmarked Foreign Exchange Arrangements in the Notice of Borrowing, the Facility Agent on such Borrowing Date shall convert the Dollar amount of the Loans to be made by each Lender into Euro at the Spot Rate applicable for
such Borrowing Date (it being understood that the same Spot Rate shall be used for such conversion as is used to calculate the Dollar Equivalent referred to in this Section 2.02(b)), and shall inform each Lender thereof, and such Euro amount
shall thereafter be disbursed to the Borrower and/or its designee(s) as set forth in Section 2.04 (it being understood that each Lender shall remit its Loans to the Facility Agent in Dollars on such Borrowing Date).
2.03
Notice of Borrowing
. Subject to the second parenthetical in Section 2.02(a)(ii), whenever the Borrower desires to make a
Borrowing hereunder, it shall give the Facility Agent at its Notice Office at least three Business Days’ prior written notice of each Loan to be made hereunder,
provided
that any such notice shall be deemed to have been given on a
certain day only if given before 11:00 A.M. (Frankfurt time) (unless such 11:00 A.M. deadline is waived by the Facility Agent in the case of the Initial Borrowing Date). Each such written notice (each a “
Notice of
Borrowing
”), except as otherwise expressly provided in Section 2.08, shall be irrevocable and shall be given by the Borrower substantially in the form of Exhibit A, appropriately completed to specify (i) the portion of the Total
Commitments to be utilized on such Borrowing Date, (ii) if the Borrower and/or the Parent has entered into Earmarked Foreign Exchange Arrangements with respect to the installment payments due and owing under the Construction Contract to be
funded by the Loans to be incurred on such Borrowing Date, the Dollar Equivalent of the portion of the Total Commitment to be borrowed on such Borrowing Date and evidence of such Earmarked Foreign Exchange Arrangements, (iii) the date of such
Borrowing (which shall be a Business Day), (iv) to which account(s) the proceeds of such Loans are to be deposited (it being understood that pursuant to Section 2.04 the Borrower may designate one or more accounts of the Yard, Hermes
and/or the provider of the foreign exchange arrangements referenced in the definition of Dollar Equivalent) and (v) that all representations and warranties made by each Credit Party, in or pursuant to the Credit Documents are true and correct
in all material respects (unless stated to relate to a specific earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and no Event of Default is or will be
continuing after giving effect to such Borrowing. The Facility Agent shall promptly give each Lender which is required to make Loans, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of Borrowing.
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2.04
Disbursement of Funds
. No later than 12:00 Noon (Frankfurt time) on the date
specified in each Notice of Borrowing, each Lender will make available its
pro
rata
portion of each Borrowing requested in the Notice of Borrowing to be made on such date. All such amounts shall be made available in the currency
required by Section 2.02(b) in immediately available funds at the Payment Office of the Facility Agent, and the Facility Agent will make available to (I) in the case of Loans disbursed in Dollars, the Borrower (and/or its designee(s), to
the extent possible and to the extent such designee is a provider of Earmarked Foreign Exchange Arrangements referenced in the definition of Dollar Equivalent) and (II) in the case of Loans disbursed in Euro, designee(s) of the Borrower (to the
extent any such designee is the Yard or, in the case of the Hermes Premium, Hermes), in each case prior to 3:00 P.M. (Frankfurt Time) on such day, to the extent of funds actually received by the Facility Agent prior to 12:00 Noon (Frankfurt Time) on
such day, in each case at the Payment Office in the account(s) specified in the applicable Notice of Borrowing, the aggregate of the amounts so made available by the Lenders. Unless the Facility Agent shall have been notified by any Lender prior to
the date of Borrowing that such Lender does not intend to make available to the Facility Agent such Lender’s portion of any Borrowing to be made on such date, the Facility Agent may assume that such Lender has made such amount available to the
Facility Agent on such date of Borrowing and the Facility Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Facility Agent by such
Lender, the Facility Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Facility Agent’s demand therefor, the Facility Agent shall
promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Facility Agent. The Facility Agent shall also be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was made available by the Facility Agent to the Borrower until the date such corresponding amount is recovered by the Facility Agent, at a rate per annum equal
to (i) if recovered from such Lender, at the overnight Eurodollar Rate and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 2.06. Nothing in this
Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.
2.05
Pro Rata Borrowings
. All Borrowings of Loans under this Agreement shall be incurred from the Lenders
pro
rata
on the basis of their Commitments. It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder. The obligations of the Lenders under this Agreement are several and not joint and no Lender shall be responsible for the failure of any other Lender
to satisfy its obligations hereunder.
2.06
Interest
. (a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Loan from the date the proceeds thereof are made available to the Borrower until the maturity (whether by acceleration or otherwise) of such Loan at a rate per annum which shall be equal to the sum of the Applicable
Margin
plus
the CIRR Rate;
provided
that, for avoidance of doubt, the all-in interest rate per annum in respect of the unpaid principal amount of each Loan shall be 4.50% (
i.e.
3.10%
plus
1.40%).
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(b) If the Borrower fails to pay any amount payable by it under a Credit Document on
its due date, interest shall accrue on the overdue amount (in the case of overdue interest to the extent permitted by law) from the due date up to the date of actual payment (both before and after judgment) at a rate which is 2%
plus
the
Eurodollar Rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive interest periods, each of a duration selected by the Facility Agent (acting reasonably),
plus
1.60%. Any interest accruing under this Section 2.06(b) shall be immediately payable by the Borrower on demand by the Facility Agent.
(c) Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each interest period applicable to that overdue amount but will remain
immediately due and payable.
(d) Accrued and unpaid interest shall be payable in respect of each Loan on each Payment Date,
on any repayment or prepayment date (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.
(e) The Borrower shall reimburse each Lender on demand for the amount by which the Eurodollar Rate for any Interest Period
plus
the fee for administrative expenses of 0.20% per annum for such
Interest Period
less
the CIRR Rate exceeds 12% per annum (
i.e.
the amount by which the interest make-up is limited under Section 1.1 of the CIRR General Terms and Conditions).
2.07 [
Intentionally Omitted
].
2.08
Increased Costs, Illegality, etc
. (a) In the event that any Lender shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon
all parties hereto):
(i) at any time, that such Lender shall incur increased costs (including, without
limitation, pursuant to Basel II to the extent Basel II is applicable), Mandatory Costs (as set forth on Schedule 1.01(b)) or reductions in the amounts received or receivable hereunder with respect to any Loan because of, without duplication, any
change since the Effective Date in any applicable law or governmental rule, governmental regulation, governmental order, governmental guideline or governmental request (whether or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law or governmental rule, governmental regulation, governmental order, governmental guideline or governmental request, such as, for example, but not limited to: (A) a change in
the basis of taxation of payment to any Lender of the principal of or interest on such Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such
Lender, or any franchise tax based on net income or net profits, of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which such Lender’s principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements; or
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(ii) at any time, that the making or continuance of any Loan has been made
unlawful by any law or governmental rule, governmental regulation or governmental order;
then
, and in any such event, such Lender
shall promptly give notice (by telephone confirmed in writing) to the Borrower and to the Facility Agent of such determination (which notice the Facility Agent shall promptly transmit to each of the Lenders). Thereafter (x) in the case of
clause (i) above, the Borrower agrees (to the extent applicable), to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased costs
or reductions to such Lender or such other corporation and (y) in the case of clause (ii) above, the Borrower shall take one of the actions specified in Section 2.08(b) as promptly as possible and, in any event, within the time period
required by law. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such Lender’s determination of compensation
owing under this Section 2.08(a) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.08(a), will
give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for the calculation of such additional amounts;
provided
that, subject to the provisions of Section 2.10(b), the failure to give
such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
(b) At any time that any Loan is
affected by the circumstances described in Section 2.08(a)(i) or (ii), the Borrower may (and in the case of a Loan affected by the circumstances described in Section 2.08(a)(ii) shall) either (x) if the affected Loan is then being
made initially, cancel the respective Borrowing by giving the Facility Agent notice in writing on the same date or the next Business Day that the Borrower was notified by the affected Lender or the Facility Agent pursuant to Section 2.08(a)(i)
or (ii) or (y) if the affected Loan is then outstanding, upon at least three Business Days’ written notice to the Facility Agent, in the case of any Loan, repay all outstanding Borrowings (within the time period required by the
applicable law or governmental rule, governmental regulation or governmental order) which include such affected Loans in full in accordance with the applicable requirements of Section 4.02;
provided
that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.08(b).
(c) If any
Lender determines that after the Effective Date (i) the introduction of or effectiveness of or any change in any applicable law or governmental rule, governmental regulation, governmental order, governmental guideline, governmental directive or
governmental request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency will have the effect of increasing
the amount of capital required or expected to be maintained by such Lender, or any corporation controlling such Lender, based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, (ii) compliance with any
law or regulation or any request from or requirement of any central bank or other fiscal, monetary or other authority made after the Effective Date (including any which relates to capital adequacy or liquidity controls or which affects the manner in
which a Lender allocates capital resources to obligations under this Agreement, any Interest Rate Protection Agreement and/or
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any Other Hedging Agreement) or (iii) to the extent that such change is not discretionary and is pursuant to law, a governmental mandate or request, or a central bank or other fiscal or
monetary authority mandate or request, any change in the risk weight allocated by such Lender to the Borrower after the Effective Date, then the Borrower agrees (to the extent applicable) to pay to such Lender, upon its written demand therefor, such
additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result
of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such Lender’s determination of
compensation owing under this Section 2.08(c) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this
Section 2.08(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts;
provided
that, subject to the provisions of
Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
(d) If any Reference Bank ceases to be a Lender under this Agreement, (x) it shall cease to be a Reference Bank and (y) the Facility Agent shall, with the approval (which shall not be
unreasonably withheld) of the Borrower, nominate as soon as reasonably practicable another Lender to be a Reference Bank in place of such Reference Bank.
2.09 [
Intentionally Omitted
].
2.10
Change of Lending Office;
Limitation on Additional Amounts
. (a) Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 2.08(a), Section 2.08(b), or Section 4.04 with respect to such Lender, it will, if requested
by the Borrower, use reasonable good faith efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event or otherwise take steps to mitigate the effect of such event,
provided
that such designation shall be made and/or such steps shall be taken at the Borrower’s cost and on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage in excess of
de
minimus
amounts, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 2.10 shall affect or postpone any of the obligations of the Borrower or the rights of any
Lender provided in Section 2.08 and Section 4.04.
(b) Notwithstanding anything to the contrary contained in
Sections 2.08 or 4.04 of this Agreement, unless a Lender gives notice to the Borrower that it is obligated to pay an amount under any such Section within 180 days of the later of (x) the date the Lender incurs the respective increased costs,
Taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital or (y) the date such Lender has knowledge of its incurrence of the respective increased costs, Taxes, loss, expense or liability,
reductions in amounts received or receivable or reduction in return on capital, then such Lender shall only be entitled to be indemnified for such amount by the Borrower pursuant to said Section 2.08 or 4.04, as the case may be, to the extent
the costs, Taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to the Borrower that
it is obligated to pay the respective amounts pursuant to said Section 2.08 or 4.04, as the case may be. This Section 2.10(b) shall have no applicability to any Section of this Agreement other than said Sections 2.08 and 4.04.
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2.11
Replacement of Lenders
. (x) If any Lender becomes a Defaulting Lender or
otherwise defaults in its obligations to make Loans, (y) upon the occurrence of any event giving rise to the operation of Section 2.08(a) or Section 4.04 with respect to any Lender which results in such Lender charging to the Borrower
material increased costs in excess of the average costs being charged by the other Lenders, or (z) as provided in Section 14.11(b) in the case of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower shall (for its own cost) have the right, if no Default or Event of Default will exist immediately after giving effect to the respective
replacement, to replace such Lender (the “
Replaced Lender
”) (subject to the consent of KfW, as CIRR mandatary, if (i) the Replaced Lender is a Refinanced Bank and/or (ii) the Replacement Lender (as defined below) elects to
become a Refinanced Bank, and the Hermes Agent) with one or more other Eligible Transferee or Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “
Replacement
Lender
”) reasonably acceptable to the Facility Agent (it being understood that all then-existing Lenders are reasonably acceptable);
provided
that:
(a) at the time of any replacement pursuant to this Section 2.11, the Replacement Lender shall enter into one or more
Transfer Certificates pursuant to Section 13.01(a) (and with all fees payable pursuant to said Section 13.02 to be paid by the Replacement Lender) pursuant to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the sum (without duplication) of (x) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans of the Replaced Lender, and (y) an amount equal to all accrued, but unpaid, Commitment Commission owing to the Replaced Lender pursuant to Section 3.01;
(b) all obligations of the Borrower due and owing to the Replaced Lender at such time (other than those specifically
described in clause (a) above) in respect of which the assignment purchase price has been, or is concurrently being, paid shall be paid in full to such Replaced Lender concurrently with such replacement; and
(c) if the Borrower elects to replace any Lender pursuant to clause (x), (y) or (z) of this Section 2.11,
the Borrower shall also replace each other Lender that qualifies for replacement under such clause (x), (y) or (z).
Upon
the execution of the respective Transfer Certificate and the payment of amounts referred to in clauses (a) and (b) above, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 4.04, 14.01 and 14.05), which shall survive as to such Replaced Lender.
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2.12
Disruption to Payment Systems, Etc
. If either the Facility Agent determines (in
its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Parent or the Borrower that a Disruption Event has occurred:
(i) the Facility Agent may, and shall if requested to do so by the Borrower or the Parent, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or
administration of this Agreement as the Facility Agent may deem necessary in the circumstances;
(ii) the
Facility Agent shall not be obliged to consult with the Borrower or the Parent in relation to any changes mentioned in clause (i) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;
(iii) the Facility Agent may consult with the other Agents, the Joint
Lead Arrangers and the Lenders in relation to any changes mentioned in clause (i) above but shall not be obliged to do so if, in its opinion, it is not practicable or necessary to do so in the circumstances;
(iv) any such changes agreed upon by the Facility Agent and the Borrower or the Parent pursuant to clause (i) above
shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the parties to this Agreement as an amendment to (or, as the case may be, waiver of) the terms of the Credit Documents, notwithstanding the
provisions of Section 14.11, until such time as the Facility Agent is satisfied that the Disruption Event has ceased to apply;
(v) the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence or any other category of liability whatsoever but not including any
claim based on the gross negligence, fraud or willful misconduct of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Section 2.12; and
(vi) the Facility Agent shall notify the other Agents, the Joint Lead Arrangers and the Lenders of all changes agreed
pursuant to clause (iv) above as soon as practicable.
SECTION 3.
Commitment Commission; Fees; Reductions of
Commitment
.
3.01
Commitment Commission
. (a) The Borrower agrees to pay the Facility Agent for distribution to
each Non-Defaulting Lender a commitment commission (the “
Commitment Commission
”) for the period from the Effective Date to and including the Commitment Termination Date (or such earlier date as the Total Commitment shall have been
terminated) computed at a rate for each day equal to 0.60% (
i.e.
37.5% of 1.60%) multiplied by the Commitment for such day of such Non-Defaulting Lender divided by 360. Accrued Commitment Commission shall be due and payable quarterly in
arrears on each Payment Date, and on the Borrowing Date contemplated by Section 2.02(a)(vi) (or such earlier date upon which the Total Commitment is terminated).
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(b) The Borrower shall pay to each Agent, for such Agent’s own account or for the
account of the Lenders, such other fees as have been agreed to in writing by the Borrower and such Agent.
3.02
Voluntary
Reduction or Termination of Commitments
. Upon at least three Business Days’ prior notice to the Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), the Borrower shall have
the right, at any time or from time to time, without premium or penalty, to reduce or terminate the Total Commitment, in whole or in part, in integral multiples of €5,000,000 in the case of partial reductions thereto,
provided
that each
such reduction shall apply proportionately to permanently reduce the Commitment of each Lender.
3.03
Mandatory Reduction
of Commitments
. (a) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment (and the Commitment of each Lender) shall terminate in its entirety
on the Commitment Termination Date.
(b) In addition to any other mandatory commitment reductions pursuant to this
Section 3.03 or any other Section of this Agreement, the Total Commitments (and the Commitments of each Lender) shall be reduced (immediately after the relevant Loans are made) on each Borrowing Date by the amount of Commitments (denominated in
Euro) utilized to make the Loans made on such Borrowing Date.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment shall be terminated at the times required by Section 4.02.
(d) Each reduction to the Total Commitment pursuant to this Section 3.03 and Section 4.02 shall be applied proportionately to reduce the Commitment of each Lender.
SECTION 4.
Prepayments; Repayments; Taxes
.
4.01
Voluntary Prepayments
. The Borrower shall have the right to prepay the Loans, without premium or penalty except as provided by law, in whole or in part at any time and from time to time on the
following terms and conditions:
(a) the Borrower shall give the Facility Agent prior to 12:00 Noon (Frankfurt
time) at its Notice Office at least 30 Business Days’ prior written notice of its intent to prepay such Loans, the amount of such prepayment and the specific Borrowing or Borrowings pursuant to which made, which notice the Facility Agent shall
promptly transmit to each of the Lenders;
(b) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 or such lesser amount of a Borrowing which is outstanding,
provided
that no partial prepayment of Loans made pursuant to any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than
$1,000,000;
(c) [Intentionally Omitted];
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(d) in the event of certain refusals by a Lender as provided in
Section 14.11(b) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower may, upon five Business Days’ written notice to the
Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), prepay all Loans, together with accrued and unpaid interest, Commitment Commission, and other amounts owing to such Lender (or
owing to such Lender with respect to each Loan which gave rise to the need to obtain such Lender’s individual consent) in accordance with said Section 14.11(b) so long as (A) the Commitment of such Lender (if any) is terminated
concurrently with such prepayment (at which time Schedule 1.01(a) shall be deemed modified to reflect the changed Commitments) and (B) the consents required by Section 14.11(b) in connection with the prepayment pursuant to this clause
(d) have been obtained; and
(e) each prepayment in respect of any Loans made pursuant to a Borrowing
shall be applied (x) in inverse order of maturity and (y) except as expressly provided in the preceding clause (d),
pro
rata
among the Loans comprising such Borrowing,
provided
that in connection with any prepayment of
Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Loan of a Defaulting Lender until all other Loans of Non-Defaulting Lenders have been repaid in full.
4.02
Mandatory Repayments and Commitment Reductions
. (a) In addition to any other mandatory repayments pursuant to this
Section 4.02 or any other Section of this Agreement, the outstanding Loans shall be repaid (without further action of the Borrower being required) in 24 equal semi-annual installments commencing on the first Business Day that is on or after the
sixth month anniversary of the Borrowing Date in relation to the Delivery Date and ending on the Maturity Date (each such repayment, a “
Scheduled Repayment
”).
(b) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of this Agreement, but without duplication, on (i) the Business Day
following the date of a Collateral Disposition (other than a Collateral Disposition constituting an Event of Loss) and (ii) the earlier of (A) the date which is 150 days following any Collateral Disposition constituting an Event of Loss
involving the Vessel (or, in the case of an Event of Loss which is a constructive or compromised or arranged total loss of the Vessel, if earlier, 180 days after the date of the event giving rise to such damage) and (B) the date of receipt by
the Borrower, any of its Subsidiaries or the Facility Agent of the insurance proceeds relating to such Event of Loss, the Borrower shall repay the outstanding Loans in full and the Total Commitment shall be automatically terminated (without further
action of the Borrower being required).
(c) In addition to any other mandatory repayments or commitment reductions pursuant
to this Section 4.02 or any other Section of this Agreement, but without duplication, if (x) the Construction Contract is terminated prior to the Delivery Date, (y) the Vessel has not been delivered to the Borrower by the Yard
pursuant to the Construction Contract by the Commitment Termination Date or (z) any of the events described in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the Delivery Date, within five Business Days
of the occurrence of such event the Borrower shall repay the outstanding Loans in full and the Total Commitment shall be automatically terminated (without further action of the Borrower being required).
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(d) With respect to each repayment of Loans required by this Section 4.02, the Borrower
may designate the specific Borrowing or Borrowings pursuant to which such Loans were made,
provided
that each repayment of any Loans comprising a Borrowing shall be applied
pro
rata
among such Loans. In the absence of a
designation by the Borrower as described in the preceding sentence, the Facility Agent shall, subject to the preceding provisions of this clause (d), make such designation in its sole reasonable discretion with a view, but no obligation, to minimize
breakage costs owing pursuant to Section 4.06.
(e) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, all outstanding Loans shall be repaid in full on the Maturity Date.
4.03
Method and Place of Payment
.
Except as otherwise specifically provided herein, all payments under this Agreement shall be made to the Facility Agent for the account of the Lender or Lenders entitled thereto not later than 10:00 A.M. (New York time) on the date when due and
shall be made in Dollars in immediately available funds at the Payment Office of the Facility Agent. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day (unless the next succeeding Business Day shall fall in the next calendar month, in which case the due date thereof shall be the previous Business Day) and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04
Net Payments; Taxes
. (a) All payments made by any
Credit Party hereunder will be made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income, net
profits or any franchise tax based on net income or net profits, and any branch profits tax of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office
of such Lender is located or any subdivision thereof or therein or due to failure to provide documents under Section 4.04(b), all such taxes “
Excluded Taxes
”) and all interest, penalties or similar liabilities with respect to
such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges to the extent imposed on taxes other than Excluded Taxes (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to
collectively as “
Taxes
” and “
Taxation
” shall be applied accordingly). The Borrower will furnish to the Facility Agent within 45 days after the date of payment of any Taxes is due pursuant to applicable law certified
copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such
Lender.
(b) Each Lender agrees (consistent with legal and regulatory restrictions and subject to overall policy
considerations of such Lender) to file any certificate or document or to furnish to the Borrower any information as reasonably requested by the Borrower that may be
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necessary to establish any available exemption from, or reduction in the amount of, any Taxes;
provided
,
however
, that nothing in this Section 4.04(b) shall require a Lender to
disclose any confidential information (including, without limitation, its tax returns or its calculations). The Borrower shall not be required to indemnify any Lender for Taxes attributed to such Lender’s failure to provide the required
documents under this Section 4.04(b).
(c) If the Borrower pays any additional amount under this Section 4.04 to a
Lender and such Lender determines in its sole discretion exercised in good faith that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a “
Tax Benefit
”), such Lender shall pay to the Borrower an amount that such Lender shall, in its sole discretion exercised in good faith, determine is equal to the net benefit,
after tax, which was obtained by such Lender in such year as a consequence of such Tax Benefit;
provided
,
however
, that (i) any Lender may determine, in its sole discretion exercised in good faith consistent with the policies of
such Lender, whether to seek a Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would
not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this
Section 4.04 without any exclusions or defenses and (iii) nothing in this Section 4.04(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns).
4.05
Application of Proceeds
. (a) Subject to the provisions of the Intercreditor Agreement (to the extent it is operative),
all proceeds collected by the Collateral Agent upon any sale or other disposition of such Collateral of each Credit Party, together with all other proceeds received by the Collateral Agent under and in accordance with this Agreement and the other
Credit Documents (except to the extent released in accordance with the applicable provisions of this Agreement or any other Credit Document), shall be applied by the Facility Agent to the payment of the Secured Obligations as follows:
(i)
first
, to the payment of all amounts owing to the Collateral Agent or any other Agent of the type described in
clauses (iii) and (iv) of the definition of “Secured Obligations”;
(ii)
second
, to
the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Credit Document Obligations shall be paid to the Lender Creditors as provided in Section 4.05(d) hereof, with each Lender
Creditor receiving an amount equal to such outstanding Credit Document Obligations or, if the proceeds are insufficient to pay in full all such Credit Document Obligations, its Pro Rata Share of the amount remaining to be distributed;
(iii)
third
, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and
(ii), an amount equal to the outstanding Other Obligations shall be paid to the Other Creditors as provided in Section 4.05(d) hereof, with each Other Creditor receiving an amount equal to such outstanding Other Obligations or, if the proceeds
are insufficient to pay in full all such Other Obligations, its Pro Rata Share of the amount remaining to be distributed; and
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(iv)
fourth
, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement, the Credit Documents, the Interest Rate Protection Agreements and the Other Hedging Agreements in accordance with their terms, to
the relevant Credit Party or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this
Agreement, “
Pro Rata Share
” shall mean, when calculating a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount
of such Secured Creditor’s Credit Document Obligations or Other Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Credit Document Obligations or Other Obligations, as the case may be.
(c) If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such
Secured Creditor, such excess amount shall instead be distributed in respect of the unpaid Credit Document Obligations or Other Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Credit Document
Obligations or Other Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Credit Document Obligations or Other Obligations, as the
case may be, of such Secured Creditor and the denominator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made (x) if to the Lender Creditors, to the Facility Agent under this
Agreement for the account of the Lender Creditors, and (y) if to the Other Creditors, to the trustee, paying agent or other similar representative (each, a “
Representative
”) for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For purposes of applying payments received in accordance with this
Section 4.05, the Collateral Agent shall be entitled to rely upon (i) the Facility Agent under this Agreement and (ii) the Representative for the Other Creditors or, in the absence of such a Representative, upon the Other Creditors
for a determination (which the Facility Agent, each Representative for any Other Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Credit Document Obligations and Other
Obligations owed to the Lender Creditors or the Other Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from an Other Creditor) to the contrary, the Collateral Agent, shall be entitled to assume that
no Interest Rate Protection Agreements or Other Hedging Agreements are in existence.
(f) It is understood and agreed that
each Credit Party shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral pledged by it under and pursuant to the Security Documents and the aggregate amount of the Secured
Obligations of such Credit Party.
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4.06
Breakage Costs
. At the time of any prepayment or commitment reduction pursuant
to Sections 3.02, 3.03 or 4.01 or any mandatory repayment or commitment reduction pursuant to Section 4.02, the Borrower shall indemnify each Lender, within two Business Days of demand in writing, which request shall set forth in reasonable
detail the basis for requesting and the calculation of such amount and which in the absence of manifest error shall be conclusive evidence as to the amount due, for all losses, expenses and liabilities set forth in the CIRR General Terms and
Conditions which such Lender may sustain in respect of Loans made to the Borrower.
SECTION 5.
Conditions Precedent to the
Initial Borrowing Date
. The obligation of each Lender to make Loans on the Initial Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 5.02, 5.04, 5.05, 5.06 (other than
delivery of the Share Charge Collateral), 5.07, 5.08, 5.10, 5.11 and 5.12) waiver of the following conditions:
5.01
Effective Date
. On or prior to the Initial Borrowing Date, the Effective Date shall have occurred.
5.02
Intercreditor Agreement
. On the Initial Borrowing Date, the Intercreditor Agreement shall have been executed by the parties thereto and shall be in full force and effect.
5.03
Corporate Documents; Proceedings; etc
. On the Initial Borrowing Date, the Facility Agent shall have received a certificate, dated the Initial Borrowing Date, signed by the secretary or any
assistant secretary of each Credit Party (or, to the extent such Credit Party does not have a secretary or assistant secretary, the analogous Person within such Credit Party), and attested to by an authorized officer, member or general partner of
such Credit Party, as the case may be, in substantially the form of Exhibit D, with appropriate insertions, together with copies of the certificate of incorporation and by-laws (or equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate.
5.04
Know Your Customer
. On the Initial Borrowing
Date, the Facility Agent, the Hermes Agent and the Lenders shall have been provided with all information requested in order to carry out and be reasonably satisfied with all necessary “know your customer” information required pursuant to
the PATRIOT ACT and such other documentation and evidence necessary in order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes
Cover, in connection with each of the Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
5.05
Construction Contract and Other Material Agreements
. On or prior to the Initial Borrowing Date, the Facility Agent shall have received a true, correct and complete copy of the Construction
Contract, which shall be in full force and effect, and all other material contracts in connection with the construction, supervision and acquisition of the Vessel that the
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Facility Agent may reasonably request and all such documents shall be reasonably satisfactory in form and substance to the Facility Agent (it being understood that the executed copy of the
Construction Contract delivered to the Joint Lead Arrangers prior to the Effective Date and attached as an exhibit to the Commitment Letter is satisfactory).
5.06
Share Charge
. On the Initial Borrowing Date, the Pledgor shall have duly authorized, executed and delivered a Bermuda share charge for the Borrower substantially in the form of Exhibit F (as
modified, supplemented or otherwise modified from time to time, the “
Share Charge
”) or otherwise reasonably satisfactory to the Joint Lead Arrangers, together with the Share Charge Collateral.
5.07
Assignment of Contracts
. On the Initial Borrowing Date, the Borrower shall have duly authorized, executed and delivered a
valid and effective assignment by way of security in favor of the Collateral Agent of all of the Borrower’s present and future interests in and benefits under (x) the Construction Contract, (y) the Refund Guarantee and (z) the
Construction Risk Insurance (it being understood that the Borrower will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurance accept and endorse on such insurance policy a loss payable clause substantially
in the form set forth in Part 3 of Schedule 2 to the Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantee and none of the Construction Risk Insurances will have been issued on the Initial
Borrowing Date), which assignment shall be substantially in the form of Exhibit J hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and customary for transactions of this type, along with appropriate notices and
consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent), including, without limitation, those acknowledgments, notices and consents listed on
Schedule 5.07 (as modified, supplemented or amended from time to time, the “
Assignment of Contracts
”);
provided
that, if the Refund Guarantee issued to the Borrower on the Initial Borrowing Date shall have been issued by KfW
IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and delivered, valid and effective assignment of Refund Guarantee in the form of Exhibit Q hereto or otherwise reasonably acceptable to the Joint
Lead Arrangers and the Borrower and customary for transactions of this type, along with appropriate notices and consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and
the Facility Agent) (as modified, supplemented or amended from time to time, the “
Assignment of KfW Refund Guarantees
”).
5.08
Consents Under Existing Credit Facilities
. On or prior to the Initial Borrowing Date, the Facility Agent shall have received evidence that all conditions, waivers, consents, acknowledgments
and amendments in relation to any existing credit facilities of the Parent and/or any of its Subsidiaries required in connection with or in order to permit the transactions hereunder (including, without limitation, any prepayments required in
connection therewith) shall have been obtained and/or satisfied.
5.09
Process Agent
. On or prior to the Initial
Borrowing Date, the Facility Agent shall have received satisfactory evidence from the Parent, the Borrower and any other applicable Credit Party that they have each appointed an agent in London for the service of process or summons in relation to
each of the Credit Documents.
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5.10
Opinions of Counsel
.
(a) On the Initial Borrowing Date, the Facility Agent shall have received from O’Melveny & Myers LLP (or another counsel
reasonably acceptable to the Joint Lead Arrangers), special New York counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the
Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
(b) On the Initial Borrowing Date, the Facility Agent shall have received from Cox Hallett Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bermudian counsel to
the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the
Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
(c) On the Initial Borrowing Date, the Facility Agent
shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the
Facility Agent (for itself and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Secured Creditors) dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date or
otherwise reasonably satisfactory to the Joint Lead Arrangers covering the matters set forth on Schedule 5.10.
(d) On the
Initial Borrowing Date, the Facility Agent shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special German counsel to the Documentation Agent for the benefit of the Joint Lead
Arrangers, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead
Arrangers, covering the matters set forth on Schedule 5.10.
(e) On the Initial Borrowing Date, the Facility Agent shall have
received from Holland & Knight (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Florida counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the Initial
Borrowing Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 5.10.
5.11
KfW Refinancing
. On or prior to the Initial Borrowing Date, the definitive credit documentation related to the KfW
Refinancing (including, without limitation, the Interaction Agreement) shall have been duly executed and delivered by the parties thereto and shall be reasonably satisfactory to KfW and the Refinanced Banks, and the KfW Refinancing shall be
effective in accordance with its terms.
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5.12
Equity Payment
. On the Initial Borrowing Date, the Facility Agent shall have
received evidence, in form and substance reasonably satisfactory to the Facility Agent, that the Borrower shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for the Vessel (other than from the proceeds of
Loans and loans under the Term Loan Facilities).
5.13
Financing Statements
. On the Initial Borrowing Date, the
Collateral Agent, in consultation with the Credit Parties, shall have:
(a) prepared and filed proper financing
statements (Form UCC-1 or the equivalent) fully prepared for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the Share Charge, the Assignment of Contracts and the Assignment of KfW Refund Guarantees (if any); and
(b) received certified copies of lien search results (Form UCC-11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and
Florida, together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully prepared for filing if required by applicable laws for any financing statement which covers the Collateral except
to the extent evidencing Permitted Liens.
5.14
Security Trust Deed
. On the Initial Borrowing Date, the Security
Trust Deed shall have been executed by the parties thereto and shall be in full force and effect.
SECTION 6.
Conditions
Precedent to each Borrowing Date
. The obligation of each Lender to make Loans on each Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 6.01, 6.02, 6.03, 6.04, 6.06 and
6.07) waiver of the following conditions:
6.01
No Default; Representations and Warranties
. At the time of each
Borrowing and also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material
respects both before and after giving effect to such Borrowing with the same effect as though such representations and warranties had been made on the Borrowing Date in respect of such Borrowing (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
6.02
Consents
. On or prior to each Borrowing Date, all necessary governmental (domestic and foreign) and material third party approvals and/or consents in connection with the Construction Contract,
the Refund Guarantees (to the extent issued on or prior to such Borrowing Date), the Vessel and the other transactions contemplated hereby (except to the extent specifically addressed in other sections of Section 5 or this Section 6) shall
have been obtained and remain in effect. On each Borrowing Date, there shall not exist any
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judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions
upon this Agreement, the Transaction or the other transactions contemplated by the Credit Documents.
6.03
Refund
Guarantees
. On (x) the Initial Borrowing Date, the Refund Guarantee for the Pre-delivery Installment to be paid on the Initial Borrowing Date shall have been issued and assigned to the Collateral Agent pursuant to an Assignment of Contracts
(or, if such Refund Guarantee is issued by KfW IPEX-Bank GmbH, the Assignment of KfW Refund Guarantee) and (y) each other Borrowing Date (other than the Borrowing Date in relation to the Delivery Date), each additional Refund Guarantee that has
been issued since the Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a supplement to the relevant schedule to the Assignment of Contracts (or, in the case of Refund Guarantees issued by KfW IPEX-Bank GmbH, a
supplement to the relevant schedule of the Assignment of KfW Refund Guarantees) to the Collateral Agent with the updated information, in each case along with (to the extent incorporated into the Assignment of Contracts) an appropriate notice and
consent relating thereto, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to (i) the amount of the corresponding
Pre-delivery Installment to be paid by the Borrower to the Yard
minus
(ii) the amount paid by the Yard to the Borrower in respect of the corresponding Pre-delivery Installment under Article 8, Clause 2.8 (i),
(ii), (iii) or (iv), as the case may be, of the Construction Contract pursuant to the terms of each Refund Guarantee, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect.
6.04
Equity Payment
. On each Borrowing Date on which the proceeds of Loans are being used to fund a payment under the Construction
Contract, the Facility Agent shall have received evidence, in form and substance reasonably satisfactory to the Facility Agent, of the payment by the Borrower (other than from proceeds of Loans) of 1% of the amount due on such Borrowing Date under
the Construction Contract, which payment may be made from proceeds of Term Loans (other than on the Initial Borrowing Date).
6.05
Fees, Costs, etc
. On each Borrowing Date, the Borrower shall have paid to the Agents, the Joint Lead Arrangers
and the Lenders all costs, fees, expenses (including, without limitation, reasonable fees and expenses of White & Case LLP and local and maritime counsel and consultants) and other compensation contemplated hereby payable to the Agents, the
Joint Lead Arrangers and the Lenders or payable in respect of the transactions contemplated hereunder (including, without limitation, the KfW Refinancing), to the extent then due;
provided
that (i) any such costs, fees and expenses and
other compensation shall have been invoiced to the Borrower at least three Business Days prior to such Borrowing Date and (ii) any such costs, fees and expenses in respect of the KfW Refinancing shall not include ongoing or recurring legal
costs or expenses after the Effective Date.
6.06
Construction Contract
. On each Borrowing Date, the Borrower shall
have certified that all conditions and requirements under the Construction Contract required to be satisfied on such Borrowing Date, including in connection with the respective payment installments to be made to the Yard on such Borrowing Date,
shall have been satisfied (including, but not limited to, the Borrower’s payment to the Yard of the portion of the payment installment on the Vessel that is not being financed with proceeds of the Loans), other than those that are not
materially adverse to the Lenders, it being understood that any litigation between the Yard and the Parent and/or Borrower shall be deemed to be materially adverse to the Lenders.
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6.07
Hermes Cover
. On each Borrowing Date, (x) the Facility Agent shall have
received evidence from the Hermes Agent that the Hermes Cover is in full force and effect on terms acceptable to the Joint Lead Arrangers (it being understood that each Joint Lead Arranger shall have confirmed to the Hermes Agent that the terms of
the Hermes Cover are acceptable), and all due and owing Hermes Premium to be paid in connection therewith shall have been paid in full,
provided
it is understood and agreed that the Hermes Cover shall have been granted as soon as the Hermes
Agent and/or KfW IPEX-Bank GmbH receives the Declaration of Guarantee (
Gewährleistungs-Erklärung
) from Hermes and (y) all Loans and other financing to be made pursuant hereto shall be in material compliance with the Hermes
Cover and all applicable requirements of law or regulation.
6.08
Notice of Borrowing
. Prior to the making of each
Loan, the Facility Agent shall have received the Notice of Borrowing required by Section 2.03(a).
6.09
Solvency
Certificate
. On each Borrowing Date, Parent shall cause to be delivered to the Facility Agent a solvency certificate from a senior financial officer of Parent, in substantially the form of Exhibit K or otherwise reasonably acceptable to the
Facility Agent, which shall be addressed to the Facility Agent and each of the Lenders and dated such Borrowing Date, setting forth the conclusion that, after giving effect to the transactions hereunder (including the incurrence of all the financing
contemplated with respect thereto and the purchase of the Vessel), the Parent and its Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the Indebtedness incurred in connection therewith, and will not be left
with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
6.10
Litigation
. On the Initial Borrowing Date, other than as set forth on Schedule 6.10, there shall be no actions, suits or proceedings (governmental or private) pending or, to the Parent or the
Borrower’s knowledge, threatened (i) with respect to this Agreement or any other Credit Document or (ii) which has had, or, if adversely determined, could reasonably be expected to have, a Material Adverse Effect.
The acceptance of the proceeds of each Loan shall constitute a representation and warranty by the Borrower to the Facility Agent and each
of the Lenders that all of the applicable conditions specified in Section 5, this Section 6 and Section 7 applicable to such Loan have been satisfied as of that time.
SECTION 7.
Conditions Precedent to the Delivery Date
. The obligation of each Lender to make Loans on the Delivery Date is subject
at the time of making such Loans to the satisfaction of the following conditions:
7.01
Delivery of Vessel
. On the
Delivery Date, the Vessel shall have been delivered in accordance with the terms of the Construction Contract, other than those changes that would not be materially adverse to the interests of the Lenders.
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7.02
Collateral and Guaranty Requirements
. On or prior to the Delivery Date, the
Collateral and Guaranty Requirements with respect to the Vessel shall have been satisfied or the Facility Agent shall have waived such requirements (other than the Specified Requirements) and/or conditioned such waiver on the satisfaction of such
requirements within a specified period of time.
7.03
Evidence of 20% Payment
. On the Delivery Date, the Borrower shall
have provided funding for an amount in the aggregate equal to the sum of at least (x) 20% of the Initial Construction Price for the Vessel (no less than [*] of which shall be funded from cash on hand), (y) [*] of the aggregate amount of
Permitted Change Orders for the Vessel and (z) [*] of the difference between the Final Construction Price and the Adjusted Construction Price for the Vessel (in each case, other than from proceeds of Loans, but with respect to clause
(x) only, giving effect to proceeds from the loans under the Term Loan Facilities used to finance up to 10% of the Initial Construction Price for the Vessel) and the Facility Agent shall have received a certificate from the officer of the
Borrower to such effect.
7.04
Hermes Compliance; Compliance with Applicable Laws and Regulations
. On the Delivery
Date, all Loans and other financing to be made pursuant hereto shall be in material compliance with all applicable requirements of law or regulation and the Hermes Cover.
7.05
Opinion of Counsel
. (a) On the Delivery Date, the Facility Agent shall have received from White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers),
special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent (for itself and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Secured
Creditors) and each of the Lenders and dated as of the Delivery Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on
Schedule 7.05.
(b) On the Delivery Date, the Facility Agent shall have received from O’Melveny & Myers LLP (or
another counsel reasonably acceptable to the Joint Lead Arrangers), special New York counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated as of the Delivery Date in substantially the form
delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 7.05.
(c) On the Delivery Date, the Facility Agent shall have received from Graham Thompson & Co. (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bahamas counsel to the
Credit Parties (or if the Vessel is not flagged in the Bahamas, counsel qualified in the jurisdiction of the flag of the Vessel and reasonably satisfactory to the Facility Agent), an opinion addressed to the Facility Agent and each of the Lenders
and dated as of the Delivery Date in substantially the form delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 7.05.
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(d) On the Delivery Date, the Facility Agent shall have received from special Cox Hallett
Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), Bermuda counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated as of such Borrowing Date in substantially the form
delivered to the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering the matters set forth on Schedule 7.05.
SECTION 8.
Representations and Warranties
. In order to induce the Lenders to enter into this Agreement and to make the Loans, the Borrower or each Credit Party, as applicable, makes the following
representations and warranties, in each case on a daily basis, all of which shall survive the execution and delivery of this Agreement and the making of the Loans:
8.01
Entity Status
. The Parent and each of the other Credit Parties (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the
jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and
is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in
good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
8.02
Power and Authority
. Each of the Credit Parties has the power to enter into and perform this Agreement and those of the other Credit Documents to which it is a party and the transactions
contemplated hereby and thereby and has taken all necessary action to authorize the entry into and performance of this Agreement and such other Credit Documents and such transactions. This Agreement constitutes legal, valid and binding obligations
of the Parent and the Borrower enforceable in accordance with its terms and in entering into this Agreement and borrowing the Loans (in the case of the Borrower), the Parent and the Borrower are each acting on their own account. Each other Credit
Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Credit Party expressed to be a party thereto enforceable in accordance with their respective terms.
8.03
No Violation
. The entry into and performance of this Agreement, the other Credit Documents and the transactions contemplated
hereby and thereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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the constitutional documents of any Credit Party; or
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(c)
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except as set forth on Schedule 8.03, any agreement or document to which any member of the NCLC Group is a party or which is binding upon such Credit Party or any of
its assets, nor result in the creation or imposition of any Lien on a Credit Party or its assets pursuant to the provisions of any such agreement or document (it being understood that the Term Loan Facilities shall create a subordinated Lien on
certain Collateral).
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8.04
Governmental Approvals
. Except for the filing of those Security Documents which
require registration in the Companies Registries in England and Wales, the Federal Republic of Germany, the Bahamas, any state of the United States of America and/or with the Registrar of Companies in Bermuda, which filing must be completed within
21 days of the execution and delivery of the relevant Security Document(s) in the case of England and Wales, and for the registration of the Vessel Mortgage through the Bahamas Maritime Authority (if the Vessel is flagged in the Bahamas) or such
other relevant authority (if the Vessel is flagged in another Acceptable Flag Jurisdiction), all authorizations, approvals, consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required in
connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Credit Documents and the transactions contemplated thereby have been obtained or effected and are in full force and effect except for
matters in respect of (x) the Construction Risk Insurance and the Refund Guarantees (in each case only to the extent that such Collateral has not yet been delivered) and (y) Collateral to be delivered on the Delivery Date.
8.05
Financial Statements; Financial Condition
. (a) (i) The audited consolidated balance sheets of the
Parent and its Subsidiaries as at December 31, 2007, December 31, 2008 and December 31, 2009 and the unaudited consolidated balance sheets of the Parent and its Subsidiaries as at June 30, 2010 and the related consolidated
statements of operations and of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the case of the annual financial statements, an unqualified report from
PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the
respective fiscal years or quarters, as the case may be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved
(except as approved by the aforementioned firm of accountants and disclosed therein).
(ii) The
pro
forma
consolidated balance sheet of the Parent and its Subsidiaries as of June 30, 2010 (after giving effect to the Transaction and the financing therefor), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date,
presents a good faith estimate in all material respects of the
pro
forma
consolidated financial position of the Parent and its Subsidiaries as of such date.
(b) Since December 31, 2009, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
8.06
Litigation
. No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency
(including but not limited to investigative proceedings) are current or pending or, to the Parent or the Borrower’s knowledge, threatened, which might, if adversely determined, have a Material Adverse Effect.
8.07
True and Complete Disclosure
. Each Credit Party has fully disclosed in writing to the Facility Agent all facts relating to
such Credit Party which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.
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8.08
Use of Proceeds
. All proceeds of the Loans may be used only to finance
(i) up to 80% of the Adjusted Construction Price of the Vessel and (ii) up to 100% of the Hermes Premium.
8.09
Tax Returns and Payments
. The NCLC Group have complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all material Taxes due and payable by it; no material claims are being asserted against it with
respect to Taxes, which might, if such claims were successful, have a material adverse effect on the ability of any Credit Party to perform its obligations under the Credit Documents or could otherwise be reasonably expected to have a Material
Adverse Effect. As at the Effective Date all amounts payable by the Parent and the Borrower hereunder may be made free and clear of and without deduction for or on account of any Taxation in the Parent and the Borrower’s jurisdiction.
8.10
No Material Misstatements
. (a) All written information (other than the Projections, estimates and
information of a general economic nature or general industry nature) (the “
Information
”) concerning the Parent and its Subsidiaries, and the transactions contemplated hereby prepared by or on behalf of the foregoing or their
representatives and made available to any Lenders or any Agent in connection with the transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the
Lenders or any Agent and as of the Effective Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken
as a whole, not materially misleading in light of the circumstances under which such statements were made.
(b) The
Projections and estimates and information of a general economic nature prepared by or on behalf of the Parent, the Borrower or any of their respective representatives and that have been made available to any Lenders or any Agent in connection with
the transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by the Parent, the Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from the
Projections), as of the date such Projections and estimates were furnished to the Lenders and as of the Effective Date, and (ii) as of the Effective Date, have not been modified in any material respect by the Parent or the Borrower.
8.11
The Security Documents
. (a) None of the Collateral is subject to any Liens except Permitted Liens.
(b) The security interests created under the Share Charge in favor of the Collateral Agent, as pledgee, for the benefit of the Secured
Creditors, constitute perfected security interests in the Share Charge Collateral described in the Share Charge, subject to no security interests of any other Person. No filings or recordings are required in order to perfect (or maintain the
perfection or priority of) the security interests created in the Share Charge Collateral under the Share Charge other than with respect to that portion of the Share Charge Collateral constituting a “general intangible” under the UCC. The
filings on Form UCC-1 made pursuant to the Share Charge will perfect a security interest in the Collateral covered by the Share Charge to the extent a security interest in such Collateral may be perfected by such filings.
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(c) After the execution and registration thereof, the Vessel Mortgage will create, as
security for the obligations purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on the Vessel in favor of the Collateral Agent (or such other trustee as may be required or desired under local
law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on the Vessel may be subject to the Permitted Liens related thereto) and subject to no
other Liens (other than Permitted Liens related thereto).
(d) After the execution and delivery thereof and upon the taking of
the actions mentioned in the immediately succeeding sentence, each of the Security Documents will create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable fully perfected first priority security
interest in and Lien on all right, title and interest of the Credit Parties party thereto in the Collateral described therein, subject only to Permitted Liens. Subject to Sections 7.02, 8.04 and this Section 8.11 and the definition of
“Collateral and Guaranty Requirements,” no filings or recordings are required in order to perfect the security interests created under any Security Document except for filings or recordings which shall have been made on or prior to the
execution of such Security Document.
8.12
Capitalization
. All the Capital Stock, as set forth on Schedule 8.12, in the
Borrower and each other Credit Party (other than the Parent) is legally and beneficially owned directly or indirectly by the Parent and, except as permitted by Section 10.02, such structure shall remain so until the Maturity Date.
8.13
Subsidiaries
. On and as of the Initial Borrowing Date, other than in respect of Dormant Subsidiaries (i) the Parent has
no Subsidiaries other than those Subsidiaries listed on Schedule 8.13 which Schedule identifies the correct legal name, direct owner, percentage ownership and jurisdiction of organization of the Borrower and each such other Subsidiary on the date
hereof, (ii) all outstanding shares of the Borrower and each other Subsidiary of the Parent have been duly and validly issued, are fully paid and non-assessable and have been issued free of preemptive rights, and (iii) neither the Borrower
nor any Subsidiary of the Parent has outstanding any securities convertible into or exchangeable for its Capital Stock or outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of or any calls, commitments or claims of any character relating to, its Capital Stock or any stock appreciation or similar rights.
8.14
Compliance with Statutes, etc
. The Parent and each of its Subsidiaries is in compliance in all material
respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, except such
noncompliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.15
Winding-up, etc
. None of the events contemplated in clauses (a), (b), (c) or (d) of Section 11.05 has occurred with respect to any Credit Party.
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8.16
No Default
. No event has occurred which constitutes a Default or Event of
Default under or in respect of any Credit Document to which any Credit Party is a party or by which the Parent or any of its Subsidiaries may be bound (including (
inter alia
) this Agreement) and no event has occurred which constitutes a
default under or in respect of any agreement or document to which any Credit Party is a party or by which any Credit Party may be bound, except to an extent as could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.17
Pollution and Other Regulations
. Each of the Credit Parties:
(a) is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements
relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters),
including without limitation, laws, regulations, conventions and agreements relating to (i) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil,
hazard substances, petroleum and petroleum products and by-products (“
Materials of Environmental Concern
”) or (ii) Environmental Law;
(b) has all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Law (“
Environmental
Approvals
”) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted;
(c) has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential
liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys’
fees and expenses or fines or penalties, in each case arising out of, based on or resulting from (i) the presence or release or threat of release into the environment of any Materials of Environmental Concern at any location, whether or not
owned by such person or (ii) Environmental Claim,
which is, or are, in each case, material; and
there are no circumstances that may prevent or interfere with such full compliance in the future.
There are no Environmental Claims pending or threatened against any of the Credit Parties which the Parent or the Borrower, in its
reasonable opinion, believes to be material.
There are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern, that the Parent or the Borrower reasonably believes could form the basis of any bona fide material
Environmental Claim against any of the Credit Parties.
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8.18
Ownership of Assets
. Except as permitted by Section 10.02, each member of
the NCLC Group has good and marketable title to all its assets which is reflected in the audited accounts referred to in Section 8.05(a).
8.19
Concerning the Vessel
. As of the Delivery Date, (a) the name, registered owner, official number, and jurisdiction of registration and flag of the Vessel shall be set forth on Schedule
8.19 (as updated from time to time by the Borrower pursuant to Section 9.13 with respect to flag jurisdiction, and otherwise (with respect to name, registered owner, official number and jurisdiction of registration) upon advance notice and in a
manner that does not interfere with the Lenders’ Liens on the Collateral,
provided
that each applicable Credit Party shall take all steps requested by the Collateral Agent to preserve and protect the Liens created by the Security
Documents on the Vessel) and (b) the Vessel is and will be operated in material compliance with all applicable law, rules and regulations.
8.20
Citizenship
. None of the Credit Parties has an establishment in the United Kingdom within the meaning of the Overseas Companies Regulation 2009 or a place of business in the United States (in
each case, except as already disclosed) or any other jurisdiction which requires any of the Security Documents to be filed or registered in that jurisdiction to ensure the validity of the Security Documents to which it is a party unless (x) all
such filings and registrations have been made or will be made as provided in Sections 7.02, 8.04 and 8.11 and the definition of “Collateral and Guaranty Requirements” and (y) prompt notice of the establishment of such a place of
business is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied. The Borrower and each other Credit Party which owns or operates, or will own or operate, the Vessel at any time is, or will be,
qualified to own and operate the Vessel under the laws of the Bahamas or such other jurisdiction in which the Vessel is permitted, or will be permitted, to be flagged in accordance with the terms of Section 9.13.
8.21
Vessel Classification
. The Vessel is or will be as of the Delivery Date, classified in the highest class available for
vessels of its age and type with a classification society listed on Schedule 8.21 hereto or another internationally recognized classification society reasonably acceptable to the Collateral Agent, free of any overdue conditions or recommendations.
8.22
No Immunity
. None of the Credit Parties nor any of their respective assets enjoys any right of immunity
(sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Credit Documents or by any relevant or applicable law.
8.23
Fees, Governing Law and Enforcement
. No fees or taxes, including, without limitation, stamp, transaction, registration or
similar taxes, are required to be paid to ensure the legality, validity, or enforceability of this Agreement or any of the other Credit Documents other than recording taxes which have been, or will be, paid as and to the extent due. Under the laws
of the Bahamas or any other jurisdiction where the Vessel is flagged, the choice of the laws of England as set forth in the Credit Documents which are stated to be governed by the laws of England is a valid choice of law, and the irrevocable
submission by each Credit Party to jurisdiction and consent to service of process and, where necessary, appointment by such Credit Party of an agent for service of process, in each case as set forth in such Credit Documents, is legal, valid, binding
and effective.
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8.24
Form of Documentation
. Each of the Credit Documents is in proper legal form
(under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is flagged or where the Credit Parties are domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or
admissibility in evidence of each such Credit Document in England, the Bahamas and/or Bermuda it is not necessary that any Credit Document or any other document be filed or recorded with any court or other authority in England, the Bahamas and
Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8, as applicable.
8.25
Pari Passu or Priority Status
. The claims of the Agents and the Lenders against the Parent or the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured creditors of the Parent or the Borrower (other than
claims of such creditors to the extent that they are statutorily preferred) and in priority to the claims of any creditor of the Parent or the Borrower who is also a Credit Party.
8.26
Solvency
. The Credit Parties, taken as a whole, are and shall remain, after the advance to them of the Loans or any of such
Loans, solvent in accordance with the laws of Bermuda, the United States, England and the Bahamas and in particular with the provisions of the Bankruptcy Code and the requirements thereof.
8.27
No Undisclosed Commissions
. There are and will be no commissions, rebates, premiums or other payments by or to or on account
of any Credit Party, their shareholders or directors in connection with the Transaction as a whole other than as disclosed to the Facility Agent or any other Agent in writing.
8.28
Completeness of Documentation
. The copies of the Management Agreements, Construction Contract, each Refund Guarantee, and to the extent applicable, each Supervision Agreement delivered to the
Facility Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been
agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable, unless replaced by a management agreement or management agreements, refund guarantees or, to the extent applicable,
a supervision agreement, as the case may be, reasonably satisfactory to the Facility Agent.
8.29
Money Laundering
. Any
borrowing by the Borrower hereunder, and the performance of its obligations hereunder and under the other Security Documents, will be for its own account and will not, to the best of its knowledge, involve any breach by it of any law or regulatory
measure relating to “money laundering” as defined in Article 1 of the Directive (2005/EC/60) of the European Parliament and of the Council of the European Communities.
SECTION 9.
Affirmative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the Initial Borrowing
Date and until the Total Commitments have terminated and the Loans, together with interest, Commitment Commission and all other obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense
reimbursement claims for which no claim has been made):
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9.01
Information Covenants
. The Parent will provide to the Facility Agent (or will
procure the provision of):
(a)
Quarterly Financial Statements
. Within 60 days after the close of the first three
fiscal quarters in each fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such quarterly accounting period and the related consolidated statements of operations and cash flows, in each
case for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, and in each case, setting forth comparative figures for the related periods in the prior fiscal
year, all of which shall be certified by a financial officer of the Borrower, subject to normal year-end audit adjustments and the absence of footnotes;
(b)
Annual Financial Statements
. Within 120 days after the close of each fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of operations and changes in shareholders’ equity and of cash flows for such fiscal year setting forth comparative figures for the preceding fiscal year and audited by independent certified public
accountants of recognized international standing, together with an opinion of such accounting firm (which opinion shall not be qualified as to scope of audit or as to the status of the Parent as a going concern) to the effect that such consolidated
financial statements fairly present, in all material respects, the financial position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP;
(c)
Valuations
. After the Delivery Date, together with delivery of the financial statements described in Section 9.01(b) for
each fiscal year, and at any other time within 15 days of a written request from the Facility Agent, appraisal reports of recent date (but in no event earlier than 90 days before the delivery of such reports) from two Approved Appraisers or such
other independent firm of shipbrokers or shipvaluers nominated by the Borrower and approved by the Facility Agent (acting on the instructions of the Required Lenders) or failing such nomination and approval, appointed by the Facility Agent (acting
on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Facility Agent, physical inspection and on the basis of a sale for prompt delivery for cash at arm’s length on normal
commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the Vessel), stating the then current fair market value of the Vessel. All such appraisals
shall be conducted by, and made at the expense of, the Borrower (it being understood that the Facility Agent may and, at the request of the Lenders, shall, upon prior written notice to the Borrower (which notice shall identify the names of the
relevant appraisal firms), obtain such appraisals and that the cost of all such appraisals will be for the account of the Borrower);
provided
that, unless an Event of Default shall then be continuing, in no event shall the Borrower be
required to pay for appraisal reports from two appraisers on more than one occasion in any fiscal year of the Borrower, with the cost of any such reports in excess thereof to be paid by the Lenders on a
pro
rata
basis;
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(d)
Filings
. Promptly, copies of all financial information, proxy materials and other
information and reports, if any, which the Parent or any of its Subsidiaries shall file with the Securities and Exchange Commission (or any successor thereto);
(e)
Projections
. (i) As soon as practicable (and in any event within 120 days after the close of each fiscal year), commencing with the fiscal year ending December 31, 2010, annual cash
flow projections on a consolidated basis of the NCLC Group showing on a monthly basis advance ticket sales (for at least 12 months following the date of such statement) for the NCLC Group;
(ii) As soon as practicable (and in any event not later than January 31 of each fiscal year):
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(x)
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a budget for the NCLC Group for such new fiscal year including a 12 month liquidity budget for such new fiscal year;
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(y)
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updated financial projections of the NCLC Group for at least the next five years (including an income statement and quarterly break downs for the first of those five
years); and
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(z)
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an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings;
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(f)
Officer’s Compliance Certificates
. As soon as practicable (and in any event within 60 days after the close of each of the
first three quarters of its fiscal year and within 120 days after the close of each fiscal year), a statement signed by one of the Parent’s financial officers substantially in the form of Exhibit M (commencing with the fourth quarter of the
fiscal year ending December 31, 2010) and such other information as the Facility Agent may reasonably request;
(g)
Litigation
. On a quarterly basis, details of any material litigation, arbitration or administrative proceedings affecting any Credit Party which are instituted and served, or, to the knowledge of the Parent or the Borrower, threatened (and
for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding $25,000,000 or the equivalent in another currency);
(h)
Notice of Event of Default
. Promptly upon (i) any Credit Party becoming aware thereof (and in any event within three Business Days), notification of the occurrence of any Event of Default
and (ii) the Facility Agent’s request from time to time, a certificate stating whether any Credit Party is aware of the occurrence of any Event of Default;
(i)
Status of Foreign Exchange Arrangements
. Promptly upon reasonable request from any Joint Lead Arranger through the Facility Agent, an update on the status of the Parent and the Borrower’s
foreign exchange arrangements with respect to the Vessel and the Term Loan Facilities, the Other Export Credit Facility and this Agreement; and
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(j)
Other Information
. Promptly, such further information in its possession or
control regarding its financial condition and operations and those of any company in the NCLC Group as the Facility Agent may reasonably request.
All accounts required under this Section 9.01 shall be prepared in accordance with GAAP and shall fairly represent in all material respects the financial condition of the relevant company.
9.02
Books and Records; Inspection
. The Parent will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in all material respects, in which materially proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Parent and its Subsidiaries in accordance with GAAP. The
Parent will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Facility Agent at the reasonable request of any Joint Lead Arranger to visit and inspect, under guidance of officers of the Parent or such
Subsidiary, any of the properties of the Parent or such Subsidiary, and to examine the books of account of the Parent or such Subsidiary and discuss the affairs, finances and accounts of the Parent or such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Facility Agent at the reasonable request of any such Joint Lead Arranger
may reasonably request.
9.03
Maintenance of Property; Insurance
. The Parent will (x) keep, and will procure that
each of its Subsidiaries keeps, all of its real property and assets properly maintained and in existence and will comprehensively insure, and will procure that each of its Subsidiaries comprehensively insures, for such amounts and of such types as
would be effected by prudent companies carrying on business similar to the Parent or its Subsidiaries (as the case may be) and (y) as of the Delivery Date, maintain (or cause the Borrower to maintain) insurance (including, without limitation,
hull and machinery, war risks, loss of hire (if applicable), protection and indemnity insurance as set forth on Schedule 9.03 (the “
Required Insurance
”) with respect to the Vessel at all times.
9.04
Corporate Franchises
. The Parent will, and will cause each of its Subsidiaries to, do all such things as are necessary to
maintain its corporate existence (except as permitted by Section 10.02) in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and
maintain all franchises and rights necessary for the conduct of its business, except, in the case of Subsidiaries that are not Credit Parties, to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.
9.05
Compliance with Statutes, etc
. The Parent will, and will cause each of its Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions (including all laws and regulations relating to money laundering) imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property, except such non-compliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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9.06
Hermes Cover
. (a) The terms and conditions of the Hermes Cover are
incorporated herein and in so far as they impose terms, conditions and/or obligations on the Collateral Agent and/or the Facility Agent and/or the Hermes Agent and/or the Lenders in relation to the Borrower or any other Credit Party then such terms,
conditions and obligations are binding on the parties hereto and further in the event of any conflict between the terms of the Hermes Cover and the terms hereof the terms of the Hermes Cover shall be paramount and prevail. For the avoidance of
doubt, neither the Parent nor the Borrower has any interest or entitlement in the proceeds of the Hermes Cover. In particular, but without limitation, the Borrower shall pay any difference between the amount of the Loans drawn to pay the Hermes
Premium, and the Hermes Premium.
(b) The Borrower shall at all times promptly pay all due and owing Hermes Premium.
9.07
End of Fiscal Years
. The Parent and the Borrower will maintain their fiscal year ends as in effect on the
Effective Date.
9.08
Performance of Credit Document Obligations
. The Parent will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each mortgage, indenture, security agreement and other debt instrument (including, without limitation, the Credit Documents) by which it is bound, except such non-performances as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.09
Payment of
Taxes
. The Parent will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, might become a Lien not otherwise permitted under Section 10.01,
provided
that neither the Parent nor any of its Subsidiaries shall be required to
pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with generally accepted accounting principles.
9.10
Further Assurances
. (a) The Borrower will, from time to time on being required to do so by the Facility Agent or the
Hermes Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form reasonably satisfactory to the Facility Agent or the Hermes Agent (as the case may be) as the Facility Agent or the Hermes
Agent may reasonably consider necessary for giving full effect to any of the Credit Documents or securing to the Agents and/or the Lenders or any of them the full benefit of the rights, powers and remedies conferred upon the Agents and/or the
Lenders or any of them in any such Credit Document.
(b) The Borrower hereby authorizes the Collateral Agent to file one or
more financing or continuation statements under the UCC (or any non-U.S. equivalent thereto), and amendments thereto, relative to all or any part of the Collateral without the signature of the Borrower, where permitted by law. The Collateral Agent
will promptly send the Borrower a copy of any financing or continuation statements which it may file without the signature of the Borrower and the filing or recordation information with respect thereto.
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(c) The Parent will cause each Subsidiary of the Parent which owns any direct interest in
the Borrower promptly following such Subsidiary’s acquisition of such interest, to execute and deliver a counterpart to the Share Charge (or, if requested by the Facility Agent, a joinder agreement in respect of the Intercreditor Agreement (if
applicable)) and, in connection therewith, promptly execute and deliver all further instruments, and take all further action, that the Facility Agent may reasonably require (including, without limitation, the provision of officers’
certificates, resolutions, good standing certificates and opinions of counsel, in each case to the reasonable satisfaction of the Facility Agent).
(d) If at any time the Borrower shall enter into a Supervision Agreement pursuant to the Construction Contract, the Borrower shall, substantially simultaneously therewith, duly authorize, execute and
deliver a valid and effective first-priority legal assignment in favor of the Collateral Agent of all of the Borrower’s present and future interests in and benefits under such Supervision Agreement, which such assignment shall be in form and
substance reasonably acceptable to the Facility Agent, and customary for this type of transaction.
9.11
Ownership of
Subsidiaries
. Other than “director qualifying shares” and similar requirements, the Parent shall at all times directly or indirectly own 100% of the Capital Stock or other Equity Interests of the Borrower (except as permitted by
Section 10.02).
9.12
Consents and Registrations
. The Parent and the Borrower shall obtain (and shall, at the
request of the Facility Agent, promptly furnish certified copies to the Facility Agent of) all such authorizations, approvals, consents, licenses and exemptions as may be required under any applicable law or regulation to enable it or any Credit
Party to perform its obligations under, and ensure the validity or enforceability of, each of the Credit Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times.
Insofar as such filings or registrations have not been completed on or before the Initial Borrowing Date, the Borrower will procure the filing or registration within applicable time limits of each Security Document which requires filing or
registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents.
9.13
Flag of Vessel
. (a) The Borrower shall cause the Vessel to be registered under the laws and flag of the Bahamas or, provided that the requirements of a Flag Jurisdiction Transfer are
satisfied, another Acceptable Flag Jurisdiction. Notwithstanding the foregoing, the relevant Credit Party may transfer the Vessel to an Acceptable Flag Jurisdiction pursuant to the requirements set forth in the definition of “Flag Jurisdiction
Transfer”.
(b) Except as permitted by Section 10.02, the Borrower will own the Vessel and will procure that the
Vessel is traded within the NCLC Fleet from the Initial Borrowing Date until the Maturity Date.
(c) The Borrower will at all
times engage the Manager (or a replacement manager reasonably acceptable to the Facility Agent) to provide the commercial and technical management and crewing of the Vessel.
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9.14
“Know Your Customer” and Other Similar Information
. The Parent will,
and will cause the Credit Parties, to provide (i) the “Know Your Customer” information required pursuant to the PATRIOT Act and applicable money laundering provisions and (ii) such other documentation and evidence necessary in
order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or
any Lender in connection with each of the Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
SECTION 10.
Negative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the Initial Borrowing Date and until all Commitments have terminated and the Loans, together
with interest, Commitment Commission and all other Credit Document Obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense reimbursement claims for which no claim has been made):
10.01
Liens
. The Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any Collateral, whether now owned or hereafter acquired, or sell any such Collateral subject to an understanding or agreement, contingent or otherwise, to repurchase such Collateral (including sales of accounts
receivable with recourse to the Parent or any of its Subsidiaries);
provided
that the provisions of this Section 10.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein
referred to as “
Permitted Liens
”):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for Borrowed Money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x) which do not in
the aggregate materially detract from the value of the Collateral and do not materially impair the use thereof in the operation of the business of the Parent or such Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Collateral subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule
10.01, without giving effect to any renewals or extensions of such Liens,
provided
that the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding on the Effective Date,
less any repayments of principal thereof;
(iv) Liens created pursuant to the Security Documents including,
without limitation, Liens created in relation to any Interest Rate Protection Agreement or Other Hedging Agreement;
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(v) Liens arising out of judgments, awards, decrees or attachments with
respect to which the Parent or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review,
provided
that the aggregate amount of all such judgments, awards, decrees or attachments shall not constitute an
Event of Default under Section 11.09;
(vi) Liens in respect of seamen’s wages which are not past due
and other maritime Liens arising in the ordinary course of business up to an aggregate amount of $10,000,000;
(vii) Liens securing the obligations under each Term Loan Facility and any interest rate protection agreement or other
hedging agreement in connection therewith,
provided
that such Liens are subject to the provisions of the Intercreditor Agreement; and
(vii) Liens which rank after the Liens created by the Security Documents to secure the performance of bids, tenders, bonds or contracts;
provided
that (a) such bids, tenders, bonds or
contracts directly relate to the Vessel, are incurred in the ordinary course of business and do not relate to the incurrence of Indebtedness for Borrowed Money, and (b) at any time outstanding, the aggregate amount of Liens under this clause
(vii) shall not secure greater than $25,000,000 of obligations.
In connection with the granting of Liens described above in this
Section 10.01 by the Parent or any of its Subsidiaries, the Facility Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing
appropriate lien subordination agreements in favor of the holder or holders of such Liens, in respect of the item or items of equipment or other assets subject to such Liens).
10.02
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc
. (a) The Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or
enter into any transaction of merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of all or substantially all of its property or assets, or make any Acquisitions, except that:
(i) any Subsidiary of the Parent (other than the Borrower) may merge, amalgamate or consolidate with and into, or be
dissolved or liquidated into, the Parent or other Subsidiary of the Parent (other than the Borrower), so long as (x) in the case of any such merger, amalgamation, consolidation, dissolution or liquidation involving the Parent, the Parent is the
surviving or continuing entity of any such merger, amalgamation, consolidation, dissolution or liquidation and (y) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation, dissolution or liquidation) and all actions
required to maintain said perfected status have been taken;
(ii) the Parent and any Subsidiary of the Parent
may make dispositions of assets so long as such disposition is permitted pursuant to Section 10.02(b);
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(iii) the Parent and any Subsidiary of the Parent (other than the Borrower)
may make Acquisitions;
provided
that (x) the Parent provides evidence reasonably satisfactory to the Required Lenders that the Parent will be in compliance with the financial undertakings contained in Sections 10.06 to 10.09 after giving
effect to such Acquisition on a pro forma basis and (y) no Default or Event of Default will exist after giving effect to such Acquisition; and
(iv) the Parent and any Subsidiary of the Parent (other than the Borrower) may establish new Subsidiaries.
(b) The Parent will not, and will not permit any other company in the NCLC Group to, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its assets except that the following disposals shall not be taken into account:
(i) dispositions made in the ordinary course of trading of the disposing entity (excluding a disposition of the Vessel or
other Collateral) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for value in the ordinary course of trading;
(ii) dispositions of cash raised or borrowed for the purposes for which such cash was raised or borrowed;
(iii) dispositions of assets (other than the Vessel or other Collateral) owned by any member of the NCLC Group in exchange
for other assets comparable or superior as to type and value;
(iv) a vessel (other than the Vessel or other
Collateral) or any other asset owned by any member of the NCLC Group (other than the Borrower) may be sold,
provided
such sale is on a willing seller willing buyer basis at or about market rate and at arm’s length subject always to the
provisions of any loan documentation for the financing of such vessel or other asset;
(v) the Credit Parties
may sell, lease or otherwise dispose of the Vessel or sell 100% of the Capital Stock of the Borrower,
provided
that such sale is made at fair market value, the Total Commitment is permanently reduced to $0, and the Loans are repaid in full;
and
(vi) Permitted Chartering Arrangements.
10.03
Dividends
. The Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with
respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Parent may pay
Dividends to another member of the NCLC Group;
provided
that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International Ltd.,
NCL America Holdings, LLC or Arrasas Limited shall be received promptly by the Parent directly or indirectly by way of Dividend;
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(ii) the Parent 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 NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable as a result of any member of
the NCLC 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 NCLC Group; and
(iii) at any time following the listing of the ordinary Capital Stock of the Parent on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of
the Parent and its Subsidiaries for the period (taken as one period) commencing on January 1, 2010 and ending on the date prior to such Dividend for which financial statements are available so long as (x) no Default or Event or Default
exists or would result from such Dividend and (y) at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial
statements have been provided to the Facility Agent pursuant to Section 9.01 is less than 5.50:1.00.
10.04
Advances,
Investments and Loans
. The Parent will not, and will not permit any other member of the NCLC Group to, purchase or acquire any margin stock (or other Equity Interests) or any other asset, or make any capital contribution to or other investment
in any other Person (each of the foregoing an “
Investment
” and, collectively, “
Investments
”), in each case either in a single transaction or in a series of transactions (whether related or not), except that the
following shall be permitted:
(i) Investments on arm’s length terms;
(ii) Investments for its use in its ordinary course of business;
(iii) Investments the cost of which is less than or equal to its fair market value at the date of acquisition; and
(iv) Investments permitted by Section 10.02.
10.05
Transactions with Affiliates
. (a) The Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of such Person (each of the foregoing, an “
Affiliate Transaction
”) involving aggregate consideration in excess of $10,000,000 unless
such Affiliate Transaction is on terms that are not materially less favorable to the Parent or any Subsidiary of the Parent than those that could have been obtained in a comparable transaction by such Person with an unrelated Person.
(b) The provisions of Section 10.05(a) shall not apply to the following:
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(i) transactions between or among the Parent and/or any Subsidiary of the
Parent (or an entity that becomes a Subsidiary of the Parent as a result of such transaction) and any merger, consolidation or amalgamation of the Parent or any Subsidiary of the Parent and any direct parent of the Parent, any Subsidiary of the
Parent or, in the case of a Subsidiary of the Parent, the Parent;
provided
that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent or such Subsidiary of
the Parent, as the case may be, and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
(ii) Dividends permitted by Section 10.03 and Investments permitted by Section 10.04;
(iii) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf
of, officers, directors, employees or consultants of the Parent or any Subsidiary of the Parent, any direct or indirect parent of the Parent;
(iv) payments by the Parent or any Subsidiary of the Parent to a Permitted Holder made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the board of directors of the Parent in good faith;
(v) any agreement to pay, and the payment of, monitoring, management, transaction, advisory or similar fees (A) in an
aggregate amount in any fiscal year not to exceed the sum of (1) the greater of (i) 1% of Consolidated EBITDA of the Parent and (ii) $9,000,000 plus reasonable out of pocket costs and expenses in connection therewith and unpaid
amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (A)(1) above originally), plus (B) 2.0% of the value of transactions with respect to which an Affiliate provides any
transaction, advisory or other services, plus (C) so long as no Event of Default has occurred and is continuing, in the event of an initial public offering, the present value of all future amounts payable pursuant to any agreement referred to
in clause (A)(1) above in connection with the termination of such agreement with a Permitted Holder;
provided
that if any such payment pursuant to clause (C) is not permitted to be paid as a result of an Event of Default, such payment
shall accrue and may be payable when no Event of Default is continuing to the extent that no further Event of Default would result therefrom;
(vi) transactions in which the Parent or any Subsidiary of the Parent, as the case may be, delivers to the Facility Agent a letter from an independent financial advisor stating that such transaction is
fair to the Parent or any Subsidiary of the Parent, as the case may be, from a financial point of view or meets the requirements of Section 10.05(a);
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(vii) payments or loans (or cancellation of loans) to officers, directors,
employees or consultants which are approved by a majority of the board of directors of the Parent in good faith;
(viii) any agreement as in effect as of the Effective Date or any amendment thereto (so long as any such agreement
together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Effective Date) or any transaction contemplated thereby as determined in good
faith by the Parent;
(ix) (A) transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to the Parent and its
Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Parent, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or
(B) transactions with joint ventures or Subsidiaries of the Parent entered into in the ordinary course of business and consistent with past practice or industry norm;
(x) the issuance of Equity Interests (other than Disqualified Stock) of the Parent to any Person;
(xi) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Parent or any direct or indirect parent of the Issuer or of a Subsidiary of the Parent, as
appropriate, in good faith;
(xii) any contribution to the capital of the Parent;
(xiii) transactions between the Parent or any Subsidiary of the Parent and any Person, a director of which is also a
director of the Parent or a Subsidiary of the Parent or any direct or indirect parent of the Parent;
provided
,
however
, that such director abstains from voting as a director of the Parent or a Subsidiary of the Parent or such direct or
indirect parent, as the case may be, on any matter involving such other Person;
(xiv) pledges of Equity
Interests of Subsidiaries of the Parent (other than the Borrower);
(xv) the formation and maintenance of any
consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xvi) any employment agreements entered into by the Parent or any Subsidiary of the Parent in the ordinary course of business; and
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(xvii) transactions undertaken in good faith (as certified by a responsible
financial or accounting officer of the Parent in an officer’s certificate) for the purpose of improving the consolidated tax efficiency of the Parent and its Subsidiaries and not for the purpose of circumventing any provision set forth in this
Agreement.
10.06
Free Liquidity
. The Parent will not permit the Free Liquidity to be less than $50,000,000 at any
time.
10.07
Total Net Funded Debt to Total Capitalization
. The Parent will not permit the ratio of Total Net Funded
Debt to Total Capitalization to be greater than 0.70:1.00 at any time.
10.08
Collateral Maintenance
. The Borrower will
not permit the Appraised Value of the Vessel (such value, the “
Vessel Value
”) to be less than 125% of the aggregate outstanding principal amount of Loans at such time;
provided
that, so long as any non-compliance in respect
of this Section 10.08 is not caused by a voluntary Collateral Disposition, such non-compliance shall not constitute a Default or an Event of Default so long as within 10 Business Days of the occurrence of such default, the Borrower shall either
(i) post additional collateral reasonably satisfactory to the Required Lenders in favor of the Collateral Agent (it being understood that cash collateral comprised of Dollars is satisfactory and that it shall be valued at par), pursuant to
security documentation reasonably satisfactory in form and substance to the Collateral Agent and the Joint Lead Arrangers, in an aggregate amount sufficient to cure such non-compliance (and shall at all times during such period and prior to
satisfactory completion thereof, be diligently carrying out such actions) or (ii) repay Loans in an amount sufficient to cure such non-compliance;
provided
,
further
, that, subject to the last sentence in Section 9.01(c), the
covenant in this Section 10.08 shall be tested no more than once per calendar year beginning with the first calendar year end to occur after the Delivery Date in the absence of the occurrence of an Event of Default which is continuing.
10.09
Consolidated EBITDA to Consolidated Debt Service
. The Parent will not permit the ratio of Consolidated EBITDA to
Consolidated Debt Service for the NCLC Group at the end of any fiscal quarter, computed for the period of the four consecutive fiscal quarters ending as at the end of the relevant fiscal quarter, to be less than 1.25:1.00 unless the Free Liquidity
of the NCLC Group at all times during such period of four consecutive fiscal quarters ending as at the end of such fiscal quarter was equal to or greater than $100,000,000.
10.10
Business; Change of Name
. The Parent will not, and will not permit any of its Subsidiaries to, change its name, change its address as indicated on Schedule 14.03A to an address outside the
State of Florida, or make or threaten to make any substantial change in its business as presently conducted or cease to perform its current business activities or carry on any other business which is substantial in relation to its business as
presently conducted if doing so would imperil the security created by any of the Security Documents or affect the ability of the Parent or its Subsidiaries to duly perform its obligations under any Credit Document to which it is or may be a party
from time to time (it being understood that name changes and changes of address to an address outside the State of Florida shall be permitted so long as new, relevant Security Documents are executed and delivered (and if necessary, recorded) in a
form reasonably satisfactory to the Collateral Agent), in each case in the reasonable opinion of the Facility Agent;
provided
that any new leisure or hospitality venture embarked upon by any member of the NCLC Group (other than the Parent)
shall not constitute a substantial change in its business.
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10.11
Subordination of Indebtedness
. The Parent shall procure that any and all of its
Indebtedness with any other Credit Party and/or any shareholder of the Parent is at all times fully subordinated to the Credit Document Obligations. The Parent shall not make or permit to be made any repayments of principal, payments of interest or
of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any shareholder of the Parent. Upon the occurrence of an Event of Default, the Parent shall not make any repayments of principal, payments of interest
or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any other Credit Party.
10.12
Activities of Borrower, etc
. The Parent will not permit the Borrower to, and the Borrower will not:
(i) issue or enter into any guarantee or indemnity or otherwise become directly or contingently liable for the obligations
of any other Person, other than in the ordinary course of its business as owner of the Vessel;
(ii) incur any
Indebtedness other than under the Credit Documents or other than in the ordinary course of its business as owner of the Vessel; and
(iii) engage in any business or own any significant assets or have any material liabilities other than (i) its ownership of the Vessel and (ii) those liabilities which it is responsible for
under this Agreement and the other Credit Documents to which it is a party,
provided
that the Borrower may also engage in those activities that are incidental to (x) the maintenance of its existence in compliance with applicable law and
(y) legal, tax and accounting matters in connection with any of the foregoing activities.
10.13
Material
Amendments or Modifications of Construction Contracts
. The Parent will not, and will not permit any of its Subsidiaries to, make any material amendments, modifications or changes to any term or provision of the Construction Contract that
would amend, modify or change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of 7.5% in the aggregate, in each case unless such amendment, modification or change is approved in advance by the Facility Agent
and the Hermes Agent and the same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
10.14
No Place of Business
. None of the Credit Parties shall establish a place of business in the United Kingdom or the United States of America, with the exception of those places of business
already in existence on the Effective Date, unless prompt notice thereof is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied.
SECTION 11.
Events of Default
. Upon the occurrence of any of the following specified events (each an “
Event of
Default
”):
11.01
Payments
. The Borrower or any other Credit Party does not pay on the due date any amount of
principal or interest on any Loan (
provided
,
however
, that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank
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or banks through whom the relevant funds are being transmitted no Event of Default shall occur for the purposes of this Section 11.01 until the expiry of three Business Days following the
date on which such payment is due) or, within three days of the due date any other amount, payable by it under any Credit Document to which it may at any time be a party, at the place and in the currency in which it is expressed to be payable; or
11.02
Representations, etc
. Any representation, warranty or statement made or repeated in, or in connection with, any
Credit Document or in any accounts, certificate, statement or opinion delivered by or on behalf of any Credit Party thereunder or in connection therewith is materially incorrect when made or would, if repeated at any time hereafter by reference to
the facts subsisting at such time, no longer be materially correct; or
11.03
Covenants
. Any Credit Party shall
(i) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.01(h), Section 9.06, Section 9.11, or Section 10 or (ii) default in the due performance or observance by
it of any other term, covenant or agreement contained in this Agreement or any other Credit Document and, in the case of this clause (ii), such default shall continue unremedied for a period of 30 days after written notice to the Borrower by the
Facility Agent or any of the Lenders; or
11.04
Default Under Other Agreements
. (a) Any event of default occurs
under any financial contract or financial document relating to any Indebtedness of any member of the NCLC Group;
(b) Any such
Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise;
(c) Any Lien over any assets of any member of the NCLC Group becomes enforceable; or
(d) Any other Indebtedness of any member of the NCLC Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any security for the same becomes
enforceable by reason of default,
provided
that:
(i) it shall not be a Default or Event of Default under this Section 11.04 unless the principal amount of the relevant Indebtedness
as described in preceding clauses (a) through (d), inclusive, exceeds $15,000,000;
(ii) no Event of Default will arise
under clauses (a), (c) and/or (d) until the earlier of (x) 30 days following the occurrence of the related event of default, Lien becoming enforceable or Indebtedness becoming capable of being declared due prematurely, as the case may
be, and (y) the acceleration of the relevant Indebtedness or the enforcement of the relevant Lien; and
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(iii) if at any time hereafter the Parent or any other member of the NCLC Group agrees to
the incorporation of a cross default provision into any financial contract or financial document relating to any Indebtedness that is more onerous than this Section 11.04, then the Parent shall immediately notify the Facility Agent and that
cross default provision shall be deemed to apply to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the term of that financial contract or financial document; or
11.05
Bankruptcy, etc
. (a) Other than as expressly permitted in Section 10, any order is made or an effective
resolution passed or other action taken for the suspension of payments or dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of the NCLC Group; or
(b) Any member of the NCLC Group shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “
Bankruptcy Code
”); or an involuntary case is commenced against any member of the NCLC Group, and the petition is not dismissed within 45 days
after the filing thereof,
provided
,
however
, that during the pendency of such period, each Lender shall be relieved of its obligation to extend credit hereunder; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of any member of the NCLC Group, to operate all or any substantial portion of the business of any member of the NCLC Group, or any member of the NCLC Group commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any member of the NCLC Group, or there is
commenced against any member of the NCLC Group any such proceeding which remains undismissed for a period of 45 days after the filing thereof, or any member of the NCLC Group is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or any member of the NCLC Group makes a general assignment for the benefit of creditors; or any Company action is taken by any member of the NCLC Group for the purpose of effecting any of the
foregoing; or
(c) A liquidator (subject to Section 11.05(e)), trustee, administrator, receiver, manager or similar
officer is appointed in respect of any member of the NCLC Group or in respect of all or any substantial part of the assets of any member of the NCLC Group and in any such case such appointment is not withdrawn within 30 days (in this
Section 11.05, the “
Grace Period
”) unless the Facility Agent considers in its sole discretion that the interest of the Lenders and/or the Agents might reasonably be expected to be adversely affected in which event the Grace
Period shall not apply; or
(d) Any member of the NCLC Group becomes or is declared insolvent or is unable, or admits in
writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any applicable law; or
(e)
Anything analogous to or having a substantially similar effect to any of the events specified in this Section 11.05 shall have occurred under the laws of any applicable jurisdiction (subject to the analogous grace periods set forth herein); or
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11.06
Total Loss
. An Event of Loss shall occur resulting in the actual or
constructive total loss of the Vessel or the agreed or compromised total loss of the Vessel and the proceeds of the insurance in respect thereof shall not have been received within 150 days of the event giving rise to such Event of Loss; or
11.07
Security Documents
. At any time after the execution and delivery thereof, any of the Security Documents shall
cease to be in full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security
interest in, and Lien on, all of the material Collateral), in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except in connection with Permitted Liens), and subject to no other Liens (except Permitted
Liens), or any “event of default” (as defined in the Vessel Mortgage) shall occur in respect of the Vessel Mortgage; or
11.08
Guaranties
. (a) The Parent Guaranty, or any provision thereof, shall cease to be in full force or effect as to the Parent, or the Parent (or any Person acting by or on behalf of the
Parent) shall deny or disaffirm the Parent’s obligations under the Parent Guaranty; or
(b) After the execution and
delivery thereof, the Hermes Cover, or any material provision thereof, shall cease to be in full force or effect, or Hermes (or any Person acting by or on behalf of the Parent or the Hermes Agent) shall deny or disaffirm Hermes’ obligations
under the Hermes Cover; or
11.09
Judgments
. Any distress, execution, attachment or other process affects the whole or
any substantial part of the assets of any member of the NCLC Group and remains undischarged for a period of 21 days or any uninsured judgment in excess of $15,000,000 following final appeal remains unsatisfied for a period of 30 days in the case of
a judgment made in the United States and otherwise for a period of 60 days; or
11.10
Cessation of Business
. Subject to
Section 10.02, any member of the NCLC Group shall cease to carry on all or a substantial part of its business; or
11.11
Revocation of Consents
. Any authorization, approval, consent, license, exemption, filing, registration or notarization or other requirement necessary to enable any Credit Party to comply with any of its obligations under any of the Credit
Documents to which it is a party shall have been materially adversely modified, revoked or withheld or shall not remain in full force and effect and within 90 days of the date of its occurrence such event is not remedied to the satisfaction of the
Required Lenders and the Required Lenders consider in their sole discretion that such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and the Lenders or any of them; provided that
the Borrower shall not be entitled to the aforesaid 90 day period if the modification, revocation or withholding of the authorization, approval or consent is due to an act or omission of any Credit Party and the Required Lenders are satisfied in
their sole discretion that the interests of the Agents or the Lenders might reasonably be expected to be materially adversely affected; or
11.12
Unlawfulness
. At any time it is unlawful or impossible for:
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(i) any Credit Party to perform any of its obligations under any Credit
Document to which it is a party; or
(ii) the Agents or the Lenders, as applicable, to exercise any of their
rights under any of the Credit Documents;
provided
that no Event of Default shall be deemed to have occurred (x) (except where
the unlawfulness or impossibility adversely affects any Credit Party’s payment obligations under this Agreement and/or the other Credit Documents (the determination of which shall be in the Facility Agent’s sole discretion) in which case
the following provisions of this Section 11.12 shall not apply) where the unlawfulness or impossibility prevents any Credit Party from performing its obligations (other than its payment obligations under this Agreement and the other Credit
Documents) and is cured within a period of 21 days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Credit Party, within the aforesaid period, performs its obligation(s), and (y) where the
Facility Agent and/or the Lenders, as applicable, could, in its or their sole discretion, mitigate the consequences of unlawfulness or impossibility in the manner described in Section 2.10(a) (it being understood that the costs of mitigation
shall be determined in accordance with Section 2.10(a)); or
11.13
Insurances
. Borrower shall have failed to
insure the Vessel in the manner specified in this Agreement or failed to renew the Required Insurance at least 10 Business Days prior to the date of expiry thereof and, if requested by the Facility Agent, produce prompt confirmation of such renewal
to the Facility Agent; or
11.14
Disposals
. The Borrower or any other member of the NCLC Group shall have concealed,
removed, or permitted to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other creditor; or
11.15
Government Intervention
. The authority of any member of the NCLC Group in the conduct of its business shall be wholly or
substantially curtailed by any seizure or intervention by or on behalf of any authority and within 90 days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Facility Agent reasonably considers
that the relevant occurrence is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and/or the Lenders; provided that the Borrower shall not be entitled to the aforesaid 90 day period if the
seizure or intervention executed by any authority is due to an act or omission of any member of the NCLC Group and the Facility Agent is satisfied, in its sole discretion, that the interests of the Agents and/or the Lenders might reasonably be
expected to be materially adversely affected; or
11.16
Change of Control
. A Change of Control shall occur; or
11.17
Material Adverse Change
. Any event shall occur which results in a Material Adverse Effect; or
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11.18
Repudiation of Construction Contract or other Material Documents
. Any party to
the Construction Contract, any Credit Document or any other material documents related to the Credit Document Obligations hereunder shall repudiate the Construction Contract, such Credit Document or such material document in any way;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Facility Agent, upon the
written request of the Required Lenders and after having informed the Hermes Agent of such written request, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of any Agent or any Lender
to enforce its claims against any Credit Party (
provided
that, if an Event of Default specified in Section 11.05 shall occur, the result which would occur upon the giving of written notice by the Facility Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitments terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all Credit Document Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; and (iii) enforce, as Collateral Agent, all of
the Liens and security interests created pursuant to the Security Documents.
SECTION 12.
Agency and Security Trustee
Provisions
.
12.01
Appointment and Declaration of Trust
. (a) The Lenders hereby designate KfW IPEX-Bank GmbH,
as Facility Agent (for purposes of this Section 12, the term “
Facility Agent
” shall include KfW IPEX-Bank GmbH (and/or any of its Affiliates) in its capacity as Collateral Agent under the Security Documents and as CIRR Agent)
to act as specified herein and in the other Credit Documents. The Lenders hereby further designate Nordea Bank Norge ASA, as Documentation Agent, to act as specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes
the Agents to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof and such other powers as are reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through its respective
officers, directors, agents, employees or affiliates and, may transfer from time to time any or all of its rights, duties and obligations hereunder and under the relevant Credit Documents (in accordance with the terms thereof) to any of its banking
affiliates.
(b) KfW IPEX Bank GmbH in its capacity as Collateral Agent pursuant to the Security Documents declares that it
shall hold the Collateral in trust for the Secured Creditors in accordance with the terms contained in the Intercreditor Agreement. The Collateral Agent shall have the right to delegate a co-agent or sub-agent from time to time to perform and
benefit from any or all of rights, duties and obligations hereunder and under the relevant Security Documents (in accordance with the terms thereof and of the Security Trust Deed) and, in the event that any such duties or obligations are so
delegated, the Collateral Agent is hereby authorized to enter into
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additional Security Documents or amendments to the then existing Security Documents to the extent it deems necessary or advisable to implement such delegation and, in connection therewith, the
Parent will, or will cause the relevant Subsidiary to, use its commercially reasonable efforts to promptly deliver any opinion of counsel that the Facility Agent may reasonably require to the reasonable satisfaction of the Facility Agent.
(c) The Lenders hereby designate Commerzbank Aktiengesellschaft, as Hermes Agent, which Agent shall be responsible for any
and all communication, information and negotiation required with Hermes in relation to the Hermes Cover. All notices and other communications provided to the Hermes Agent shall be mailed, telexed, telecopied, delivered or electronic mailed to the
Notice Office of the Hermes Agent.
12.02
Nature of Duties
. The Agents shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Security Documents. None of the Agents nor any of their respective officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder,
under any other Credit Document, under the Hermes Cover or in connection herewith or therewith, unless caused by such Person’s gross negligence or willful misconduct (any such liability limited to the applicable Agent to whom such Person
relates). The duties of each of the Agents shall be mechanical and administrative in nature; none of the Agents shall have by reason of this Agreement or any other Credit Document any fiduciary relationship in respect of any Lender; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agents any obligations in respect of this Agreement, any other Credit Document or the Hermes Cover except as expressly
set forth herein or therein.
12.03
Lack of Reliance on the Agents
. Independently and without reliance upon the Agents,
each Lender, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Credit Parties in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith, (ii) its own appraisal of the creditworthiness of the Credit Parties and (iii) its own appraisal of the Hermes Cover and, except as expressly provided in this
Agreement, none of the Agents shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. None of the Agents shall be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement, any other Credit Document, the Hermes Cover or the financial condition of the
Credit Parties or any of them or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, any other Credit Document, the Hermes Cover, or the financial condition
of the Credit Parties or any of them or the existence or possible existence of any Default or Event of Default.
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12.04
Certain Rights of the Agents
. If any of the Agents shall request instructions
from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement, any other Credit Document or the Hermes Cover, the Agents shall be entitled to refrain from such act or taking such action
unless and until the Agents shall have received instructions from the Required Lenders; and the Agents shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agents as a result of any of the Agents acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.
12.05
Reliance
. Each of the Agents shall be entitled to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the applicable Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement, any other Credit Document, the Hermes Cover and its duties hereunder and thereunder, upon advice of counsel selected by the Facility Agent.
12.06
Indemnification
. To the extent any of the Agents is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify the applicable Agents, in proportion to their respective “percentages” as used in determining the Required Lenders (without regard to the existence of any Defaulting Lenders), for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agents in performing their respective
duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document;
provided
that no Lender shall be liable to an Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct.
12.07
The Agents in their Individual Capacities
. With respect to its obligation to make Loans under this Agreement, each of the Agents shall have the rights and powers specified herein for a
“Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lenders,” “Secured Creditors”, “Required Lenders” or any similar terms shall,
unless the context clearly otherwise indicates, include each of the Agents in their respective individual capacity. Each of the Agents may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with
any Credit Party or any Affiliate of any Credit Party as if it were not performing the duties specified herein, and may accept fees and other consideration from the Borrower or any other Credit Party for services in connection with this Agreement
and otherwise without having to account for the same to the Lenders.
12.08
Resignation by an Agent
. (a) Any Agent
may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect
upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
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(b) Upon notice of resignation by an Agent pursuant to clause (a) above, the Required
Lenders shall appoint a successor Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower;
provided
that the Borrower’s consent shall not be required pursuant to this clause
(b) if an Event of Default exists at the time of appointment of a successor Agent.
(c) If a successor Agent shall not
have been so appointed within the 15 Business Day period referenced in clause (a) above, the applicable Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust
company with capital and surplus of not less than $500,000,000 as successor Agent who shall serve as the applicable Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Agent as provided above;
provided
that the Borrower’s consent shall not be required pursuant to this clause (c) if an Event of Default exists at the time of appointment of a successor Agent.
(d) If no successor Agent has been appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such notice of resignation was given by the applicable Agent, the
applicable Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Agent as provided above.
12.09
The Joint Lead Arrangers
. Notwithstanding any other provision of this
Agreement or any provision of any other Credit Document, each of Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA, is hereby appointed as a Joint Lead Arranger by the Lenders to
act as specified herein and in the other Credit Documents. Each of the Joint Lead Arrangers in their respective capacities as such shall have only the limited powers, duties, responsibilities and liabilities with respect to this Agreement or the
other Credit Documents or the transactions contemplated hereby and thereby as are set forth herein or therein; it being understood and agreed that the Joint Lead Arrangers shall be entitled to all indemnification and reimbursement rights in favor of
any of the Agents as provided for under Sections 12.06 and 14.01. Without limitation of the foregoing, none of the Joint Lead Arrangers shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in
respect of any Lender or any other Person.
12.10
Impaired Agent
. (a) If, at any time, any Agent becomes an Impaired
Agent, a Credit Party or a Lender which is required to make a payment under the Credit Documents to such Agent in accordance with Section 4.03 may instead either pay that amount directly to the required recipient or pay that amount to an
interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Credit
Party or the Lender making the payment and designated as a trust account for the benefit of the party or parties hereto beneficially entitled to that payment under the Credit Documents. In each case such payments must be made on the due date for
payment under the Credit Documents.
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(b) All interest accrued on the amount standing to the credit of the trust account shall be
for the benefit of the beneficiaries of that trust account
pro
rata
to their respective entitlements.
(c) A
party to this Agreement which has made a payment in accordance with this Section 12.10 shall be discharged of the relevant payment obligation under the Credit Documents and shall not take any credit risk with respect to the amounts standing to
the credit of the trust account.
(d) Promptly upon the appointment of a successor Agent in accordance with
Section 12.11, each party to this Agreement which has made a payment to a trust account in accordance with this Section 12.10 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount
(together with any accrued interest) to the successor Agent for distribution in accordance with Section 2.04
12.11
Replacement of an Agent
. (a) After consultation with the Parent, the Required Lenders may, by giving 30 days’ notice to an Agent (or, at any time such Agent is an Impaired Agent, by giving any shorter notice determined by the
Required Lenders) replace such Agent by appointing a successor Agent (subject to Section 12.08(b) and (c)).
(b) The
retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Borrower) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under the Credit Documents.
(c) The appointment of the successor Agent
shall take effect on the date specified in the notice from the Required Lenders to the retiring Agent. As from such date, the retiring Agent shall be discharged from any further obligation in respect of the Credit Documents but shall remain entitled
to the benefit of this Section 12.11 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d) Any successor Agent and each of the other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party to
this Agreement.
12.12
Resignation by the Hermes Agent
. (a) The Hermes Agent may resign from the performance of
all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor
Hermes Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of
resignation by the Hermes Agent, the Required Lenders shall appoint a successor Hermes Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower; provided that the Borrower’s consent
shall not be required pursuant to this clause (b) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
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(c) If a successor Hermes Agent shall not have been so appointed within such 15 Business Day
period, the Hermes Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and surplus of not less than $500,000,000 as successor Hermes Agent
who shall serve as Hermes Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Hermes Agent as provided above; provided that the Borrower’s consent shall not be required pursuant to this clause (d) if
an Event of Default exists at the time of appointment of a successor Hermes Agent.
(d) If no successor Hermes Agent has been
appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such notice of resignation was given by the Hermes Agent, the Hermes Agent’s resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Hermes Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Hermes Agent as provided above.
SECTION 13.
Benefit of Agreement
. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, subject to the provisions of this Section 13.
13.01
Assignments and Transfers by the Lenders
. (a) Subject to Section 13.06 and 13.07, any Lender (or any Lender together with one or more other Lenders, each an “
Existing Lender
”) may:
(i) with the consent of the Hermes Agent and the written consent of the Federal Republic of Germany, where required
according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für Forderungsabtretungen-AB (FAB)
),
assign any of its rights or transfer by novation any of its rights and obligations under this Agreement or any Credit Document (including, without limitation, all of the Commitments and outstanding Loans, or if less than all, a portion equal to at
least $10,000,000 in the aggregate for such Lender’s rights and obligations), to (x) its parent company and/or any Affiliate of such assigning or transferring Lender which is at least 50% owned (directly or indirectly) by such Lender or
its parent company or (y) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such
investment advisor, or
(ii) with the consent of the Hermes Agent, the written consent of the Federal Republic
of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für
Forderungsabtretungen-AB (FAB)
) and consent of the Borrower (which consent, in the case of the Borrower (x) shall not be unreasonably withheld or delayed, (y) shall not be required if a Default or Event of Default shall have occurred
and be continuing at such time and (z) shall be deemed to have been given ten Business Days after the Existing Lender has requested it in writing unless consent is expressly refused by the Borrower
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within that time) assign any of its rights in or transfer by novation any of its rights in and obligations under all of its Commitments and outstanding Loans, or if less than all, a portion equal
to at least $10,000,000 in the aggregate for such Existing Lender’s rights and obligations, hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed
or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee),
each of which assignees or transferees shall become a party to this Agreement as a Lender by execution of (I) an Assignment Agreement (in the case of assignments) and (II) a Transfer Certificate (in
the case of transfers under Section 13.06);
provided
that (x) at such time, Schedule 1.01(a) shall be deemed modified to reflect the Commitments and/or outstanding Loans, as the case may be , of such New Lender and of the Existing
Lenders, (y) the consent of the Facility Agent shall be required in connection with any assignment or transfer pursuant to the preceding clause (ii) (which consent, in each case, shall not be unreasonably withheld or delayed) and
(z) the consent of the CIRR Agent shall be required in connection with any assignment or transfer pursuant to preceding clause (i) or (ii) if the New Lender elects to become a Refinanced Bank; and
provided
,
further
, that
at no time shall a Lender assign or transfer its rights or obligations under this Agreement to a hedge fund, private equity fund, insurance company or other similar or related financing institution that is not in the primary business of accepting
cash deposits from, and making loans to, the public.
(b) If (x) a Lender assigns or transfers any of its rights or
obligations under the Credit Documents or changes its Facility Office and (y) as a result of circumstances existing at the date the assignment, transfer or change occurs, a Credit Party would be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Sections 2.08 or 4.04, then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under that section to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. This Section 13.01(b) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary
syndication of the Credit Agreement.
(c) Each New Lender, by executing the relevant Transfer Certificate or Assignment
Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or
prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
13.02
Assignment or Transfer Fee
. Unless the Facility Agent otherwise agrees and excluding an assignment or transfer (i) to
an Affiliate of a Lender, (ii) made in connection with primary syndication of this Agreement or (iii) as set forth in Section 13.03, each New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the
Facility Agent (for its own account) a fee of $3,500.
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13.03
Assignments and Transfers to Hermes or KfW
. Nothing in this Agreement shall
prevent or prohibit any Lender from assigning its rights or transferring its rights and obligations hereunder to (x) Hermes and (y) KfW in support of borrowings made by such Lender from KfW pursuant to the KfW Refinancing, in each case
without the consent of the Borrower and without being required to pay the non-refundable assignment fee of $3,500 referred to in Section 13.02 above.
13.04
Limitation of Responsibility to Existing Lenders
. (a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the Credit Documents,
the Security Documents or any other documents;
(ii) the financial condition of any Credit Party;
(iii) the performance and observance by any Credit Party of its obligations under the Credit Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection with any
Credit Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender, the other Lender Creditors and the Secured Creditors that it (1) has made (and
shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Credit Party and its related entities in connection with its participation in this Agreement and has not relied exclusively on
any information provided to it by the Existing Lender or any other Lender Creditor in connection with any Credit Document or any Lien (or any other security interest) created pursuant to the Security Documents and (2) will continue to make its
own independent appraisal of the creditworthiness of each Credit Party and its related entities whilst any amount is or may be outstanding under the Credit Documents or any Commitment is in force.
(c) Nothing in any Credit Document obliges an Existing Lender to:
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred
under this Section 13; or
(ii) support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Credit Party of its obligations under the Credit Documents or otherwise.
13.05
[
Intentionally Omitted
].
13.06
Procedure and Conditions for Transfer
. (a) Subject to Section 13.01, a
transfer is effected in accordance with Section 13.06(c) when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New
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Lender. The Facility Agent shall, subject to Section 13.06(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know
your customer” or similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
(c) On the date of the transfer:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Credit Documents and in respect of the Security Documents each of
the Credit Parties and the Existing Lender shall be released from further obligations towards one another under the Credit Documents and in respect of the Security Documents and their respective rights against one another under the Credit Documents
and in respect of the Security Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
(ii) each of the Credit Parties and the New Lender shall assume obligations towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only insofar as that Credit Party or other member of the NCLC Group and the New Lender have assumed and/or acquired the same in place of that Credit Party and the Existing Lender;
(iii) the Facility Agent, the Collateral Agent, the Hermes Agent, the New Lender and the other Lenders shall acquire the same rights and
assume the same obligations between themselves and in respect of the Security Documents as they would have acquired and assumed had the New Lender been an original Lender with the rights, and/or obligations acquired or assumed by it as a result of
the transfer and to that extent the Facility Agent, the Collateral Agent, the Hermes Agent and the Existing Lender shall each be released from further obligations to each other under the Credit Documents, it being understood that the indemnification
provisions under this Agreement (including, without limitation, Sections 2.08, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iv) the New Lender shall become a party to this Agreement as a “Lender”; and
(v) the New Lender shall enter into the documentation required for it to accede as a party to the Intercreditor Agreement.
13.07
Procedure and Conditions for Assignment
. (a) Subject to Section 13.01, an assignment may be effected in accordance with Section 13.07(c) below when the Facility Agent executes
an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to Section 13.07(b) below, as soon as reasonably practicable after receipt by it of a duly completed
Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
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(b) The Facility Agent shall only be obliged to execute an Assignment
Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the assignment to
such New Lender.
(c) On the date of the assignment:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Credit Documents and in respect of
any Lien (or any other security interest) created pursuant to the Security Documents expressed to be the subject of the assignment in the Assignment Agreement;
(ii) the Existing Lender will be released from the obligations (the “
Relevant Obligations
”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding
obligations by which it is bound in respect of any Lien (or any other security interest) created pursuant to the Security Documents), it being understood that the indemnification provisions under this Agreement (including, without limitation,
Sections 2.08, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iii) the New Lender shall
become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations; and
(iv) the New Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement.
13.08
Copy of Transfer Certificate or Assignment Agreement to Parent
. The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment
Agreement, send to the Parent a copy of that Transfer Certificate or Assignment Agreement.
13.09
Security over
Lenders’ Rights
. In addition to the other rights provided to Lenders under this Section 13, each Lender may without consulting with or obtaining consent from any Credit Party, at any time charge, assign or otherwise create a Lien (or
any other security interest) or declare a trust in or over (whether by way of collateral or otherwise) all or any of its rights under any Credit Document to secure obligations of that Lender including, without limitation:
(i) any charge, assignment or other Lien (or any other security interest) or trust to secure obligations to a federal
reserve or central bank or KfW as CIRR mandatary; and
(ii) in the case of any Lender which is a fund, any
charge, assignment or other Lien (or any other security interest) granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, except
that no such charge, assignment or Lien (or any other security interest) or trust shall:
(i) release a Lender
from any of its obligations under the Credit Documents or substitute the beneficiary of the relevant charge, assignment or other Lien (or any other security interest) or trust for the Lender as a party to any of the Credit Documents; or
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(ii) require any payments to be made by a Credit Party or grant to any
person any more extensive rights than those required to be made or granted to the relevant Lender under the Credit Documents.
13.10
Assignment by a Credit Party
. No Credit Party may assign any of its rights or transfer by novation any of its rights,
obligations or interest hereunder or under any other Credit Document without the prior written consent of the Hermes Agent, KfW, as CIRR mandatary, and the Lenders.
13.11
Lender Participations
. (a) Although any Lender may grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not
transfer by novation its rights and obligations or assign its rights under all or any portion of its Commitments hereunder except as provided in Sections 2.11 and 13.01) and the participant shall not constitute a “Lender” hereunder; and
(b) no Lender shall grant any participation under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan in which such participant is participating, or reduce the rate or extend the time of
payment of interest or Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest rates and (n) that any amendment or modification to the financial definitions in this
Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (y) consent to the assignment by the Borrower of any of its rights, or transfer by the Borrower of any of its rights
and obligations, under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those
set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
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13.12
Increased Costs
. To the extent that a transfer of all or any portion of a
Lender’s Commitments and related outstanding Credit Document Obligations pursuant to Section 2.11 or Section 13.01 would, at the time of such assignment, result in increased costs under Section 2.08 or 4.04 from those being
charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective assignment).
SECTION 14.
Miscellaneous
.
14.01
Payment of Expenses, etc
. The Borrower agrees that it shall: whether or not the transactions herein contemplated are
consummated, (i) pay all reasonable documented out-of-pocket costs and expenses of each of the Agents (including, without limitation, the reasonable documented fees and disbursements of White & Case LLP, Bahamian counsel, Bermudian
counsel, other counsel to the Facility Agent and the Joint Lead Arrangers and local counsel) in connection with the preparation, execution and delivery of this Agreement and the other Credit Documents and the documents and instruments referred to
herein and therein and any amendment, waiver or consent relating hereto or thereto, and in connection with their respective syndication efforts with respect to this Agreement; (ii) pay all documented out-of-pocket costs and expenses of each of
the Agents and each of the Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein (including, without limitation, the fees and disbursements of
counsel (excluding in-house counsel) for each of the Agents and for each of the Lenders); (iii) pay and hold the Facility Agent and each of the Lenders harmless from and against any and all present and future stamp, documentary, transfer, sales
and use, value added, excise and other similar taxes with respect to the foregoing matters, the performance of any obligation under this Agreement or any Credit Document or any payment thereunder, and save the Facility Agent and save each of the
Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to the Facility Agent or such Lender) to pay such taxes; and (iv) other than in respect of
a wrongful failure by any Lender to fund its Commitments as required by this Agreement, indemnify the Agents and each Lender, and each of their respective officers, directors, trustees, employees, representatives and agents from and hold each of
them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and
consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding (whether or
not any of the Agents or any Lender is a party thereto) related to the entering into and/or performance of this Agreement or any other Credit Document or the proceeds of any Loans hereunder or the consummation of any transactions contemplated
herein, or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials on the Vessel or in the air, surface water
or groundwater or on the surface or subsurface of any property at any time owned or operated by the Borrower, the generation, storage, transportation, handling, disposal or Environmental Release of Hazardous Materials at any location, whether or not
owned or operated by the Borrower, the non-compliance of the Vessel or property with foreign, federal, state and local laws, regulations, and ordinances (including applicable permits thereunder) applicable to the Vessel or property, or any
Environmental Claim asserted against the Borrower or the Vessel or property at any time owned
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or operated by the Borrower, including, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation
or other proceeding (but excluding any losses, liabilities, claims, damages, penalties, actions, judgments, suits, costs, disbursements or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be
indemnified or by reason of a failure by the Person to be indemnified to fund its Commitments as required by this Agreement). To the extent that the undertaking to indemnify, pay or hold harmless each of the Agents or any Lender set forth in the
preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
14.02
Right of Set-off
. In addition to any rights now or hereafter granted under applicable law or otherwise, and not
by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to
the Parent or any Subsidiary of the Parent or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing
by such Lender (including, without limitation, by branches and agencies of such Lender wherever located) to or for the credit or the account of the Parent or any Subsidiary of the Parent but in any event excluding assets held in trust for any such
Person against and on account of the Credit Document Obligations and liabilities of the Parent or such Subsidiary of the Parent, as applicable, to such Lender under this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Credit Document Obligations purchased by such Lender pursuant to Section 14.05(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Lender shall have made any demand hereunder and although said Credit Document Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. Each Lender upon the exercise of its rights to
set-off pursuant to this Section 14.02 shall give notice thereof to the Facility Agent.
14.03
Notices
. Except as
otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed,
telexed, telecopied, delivered or electronic mailed: if to any Credit Party, at the address specified on Schedule 14.03A; if to any Lender, at its address specified opposite its name on Schedule 14.03B; and if to the Facility Agent or the Hermes
Agent, at its Notice Office; or, as to any other Credit Party, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such
Lender in a written notice to the Parent, the Borrower and the Facility Agent;
provided
that, with respect to all notices and other communication made by electronic mail or other electronic means, the Facility Agent, the Hermes Agent, the
Lenders, the Parent, the Borrower and the Pledgor agree that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and
(y) shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be
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effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after
delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the
Facility Agent or the Hermes Agent shall not be effective until received by the Facility Agent or the Hermes Agent (as the case may be), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender, the Parent, the Borrower or the Pledgor to the Facility Agent or the Hermes Agent, only if it is addressed in such a manner as the Facility Agent shall specify for this purpose. A copy of any notice
to the Facility Agent shall be delivered to the Hermes Agent at its Notice Office. If an Agent is an Impaired Agent the parties to this Agreement may, instead of communicating with each other through such Agent, communicate with each other directly
and (while such Agent is an Impaired Agent) all the provisions of the Credit Documents which require communications to be made or notices to be given to or by such Agent shall be varied so that communications may be made and notices given to or
by the relevant parties to this Agreement directly. This provision shall not operate after a replacement Agent has been appointed.
14.04
No Waiver; Remedies Cumulative
. No failure or delay on the part of an Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Borrower or any other Credit Party and an Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which an Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of an Agent or any Lender to any other or further action in any circumstances without notice or demand.
14.05
Payments Pro Rata
. (a) Except as otherwise provided in this Agreement, the Facility Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Credit Document Obligations hereunder, it shall distribute such payment to the Lenders (other than any Lender that has consented in writing to waive its
pro
rata
share of any such payment)
pro
rata
based
upon their respective shares, if any, of the Credit Document Obligations with respect to which such payment was received.
(b)
Other than in connection with assignments and participations (which are governed by Section 13), each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans,
Commitment Commission, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Credit Document Obligation then owed and due to such Lender bears to the total of such Credit
Document Obligation then owed and due to all of the Lenders immediately prior to such receipt,
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then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Credit Document Obligations of the respective Credit
Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount;
provided
that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything
to the contrary contained herein, the provisions of the preceding Sections 14.05(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as
opposed to Defaulting Lenders.
14.06
Calculations; Computations
. (a) The financial statements to be furnished to
the Lenders pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by the Parent to the Lenders). In addition, all computations determining compliance with the financial covenants set forth in Sections 10.06 through 10.09, inclusive, shall utilize accounting principles and policies in
conformity with those used to prepare the historical financial statements delivered to the Lenders for the fiscal year of the Parent ended December 31, 2009 (with the foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called “
GAAP
”). Unless otherwise noted, all references in this Agreement to “generally accepted accounting principles” shall mean generally accepted accounting principles as in effect in the United States.
(b) All computations of interest and Commitment Commission hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Commitment Commission are payable.
14.07
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
.
(a) THIS AGREEMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE
GOVERNED BY ENGLISH LAW.
(b) THE COURTS OF ENGLAND HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING A DISPUTE RELATING TO THE EXISTENCE, VALIDITY OR TERMINATION OF THIS AGREEMENT OR ANY NON-CONTRACTUAL OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) (A “
DISPUTE
”).
THE PARTIES HERETO AGREE THAT THE COURTS OF ENGLAND ARE THE MOST APPROPRIATE AND CONVENIENT COURTS TO SETTLE DISPUTES AND ACCORDINGLY NO PARTY HERETO WILL ARGUE TO THE CONTRARY. THIS SECTION 14.07 IS FOR THE BENEFIT OF THE LENDERS, AGENTS AND
SECURED CREDITORS. AS A RESULT, NO SUCH PARTY SHALL BE PREVENTED FROM TAKING PROCEEDINGS RELATING TO A DISPUTE IN ANY OTHER COURTS WITH JURISDICTION. TO THE EXTENT ALLOWED BY LAW, THE LENDERS, AGENTS AND SECURED CREDITORS MAY TAKE CONCURRENT
PROCEEDINGS IN ANY NUMBER OF JURISDICTIONS.
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(c) WITHOUT PREJUDICE TO ANY OTHER MODE OF SERVICE ALLOWED UNDER ANY RELEVANT LAW, EACH
CREDIT PARTY (OTHER THAN A CREDIT PARTY INCORPORATED IN ENGLAND AND WALES): (I) IRREVOCABLY APPOINTS EC3 SERVICES LIMITED, HAVING ITS REGISTERED OFFICE AT 51 EASTCHEAP, LONDON, EC3M 1JP, AS ITS AGENT FOR SERVICE OF PROCESS IN RELATION TO ANY
PROCEEDINGS BEFORE THE ENGLISH COURTS IN CONNECTION WITH ANY CREDIT DOCUMENT AND (II) AGREES THAT FAILURE BY AN AGENT FOR SERVICE OF PROCESS TO NOTIFY THE RELEVANT CREDIT PARTY OF THE PROCESS WILL NOT INVALIDATE THE PROCEEDINGS CONCERNED. 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 PARENT (ON BEHALF OF ALL THE CREDIT PARTIES) MUST IMMEDIATELY (AND IN ANY EVENT WITHIN FIVE DAYS OF SUCH EVENT TAKING PLACE)
APPOINT ANOTHER AGENT ON TERMS ACCEPTABLE TO THE FACILITY AGENT. FAILING THIS, THE FACILITY AGENT MAY APPOINT ANOTHER AGENT FOR THIS PURPOSE.
EACH PARTY TO THIS AGREEMENT EXPRESSLY AGREES AND CONSENTS TO THE PROVISIONS OF THIS SECTION 14.07.
14.08
Counterparts
. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Facility Agent.
14.09
Effectiveness
. This Agreement shall take effect as a deed on the date (the “
Effective Date
”) on which
(i) the Borrower, the Guarantor, the Agents and each of the Lenders who are initially parties hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Facility Agent or,
in the case of the Lenders and the other Agents, shall have given to the Facility Agent written or facsimile notice (actually received) at such office that the same has been signed and mailed to it, (ii) the Borrower shall have paid to the
Facility Agent for its own account and/or the account of Lenders and/or Agents, as the case may be, the fees required to be paid pursuant to that certain commitment letter, dated October 11, 2010, among the Parent, the Hermes Agent, Deutsche
Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA (the “
Commitment Letter
”) and (iii) the Credit Parties shall have provided (x) the “Know Your
Customer” information required pursuant to the USA PATRIOT Act (Title III of Pub.: 107-56 (signed into law October 26, 2001)) (the “
PATRIOT
Act”) and (y) such other documentation and evidence necessary in order to
carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or any Lender in connection
with each of the Facility Agent’s, the Hermes Agent’s, Hermes’ and each Lender’s internal compliance regulations. The Facility Agent will give the Parent, the Borrower and each Lender prompt written notice of the occurrence of
the Effective Date.
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14.10
Headings Descriptive
. The headings of the several sections and subsections of
this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
14.11
Amendment or Waiver; etc
. (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Credit Parties party thereto, the Hermes Agent and the Required Lenders,
provided
that no such change, waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender), (i) extend the final scheduled maturity of any Loan, extend the timing for or reduce the principal amount of any Scheduled Repayment, increase or extend any Commitment (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Commitments shall not constitute an increase of the Commitment of any Lender), or reduce the rate (including, without limitation, the
Applicable Margin and the CIRR Rate) or extend the time of payment of interest on any Loan or Commitment Commission or fees (except (x) in connection with the waiver of applicability of any post-default increase in interest rates and
(y) any amendment or modification to the definitions used in the financial covenants set forth in Sections 10.06 through 10.09, inclusive, in this Agreement shall not constitute a reduction in the rate of interest for purposes of this
clause (i)), or reduce the principal amount thereof (except to the extent repaid in cash), (ii) release any of the Collateral (except as expressly provided in the Credit Documents) under any of the Security Documents, (iii) amend, modify
or waive any provision of Section 13 or this Section 14.11, (iv) change the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Loans and Commitments are included on the Effective Date) or a provision which expressly requires the consent of all the Lenders,
(v) consent to the assignment and/or transfer by the Parent and/or Borrower of any of its rights and obligations under this Agreement, or (vi) replace the Parent Guaranty or release the Parent Guaranty from the relevant guarantee to which
such Guarantor is a party (other than as provided in such guarantee);
provided
,
further
, that no such change, waiver, discharge or termination shall (u) without the consent of Hermes, amend, modify or waive any provision that
relates to the rights or obligations of Hermes and (v) without the consent of each Agent, KfW, as CIRR mandatary and/or each Joint Lead Arranger, as applicable, amend, modify or waive any provision relating to the rights or obligations of such
Agent, KfW, as CIRR mandatary and/or such Joint Lead Arranger, as applicable.
(b) If, in connection with any proposed change,
waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 14.11(a), the consent of the Required Lenders is obtained but the consent
of each Lender (other than any Defaulting Lender) is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders are treated as described in either clauses (A) or (B) below, to either (A) replace each
such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 2.11 so long as at the time
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of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Commitment (if such
Lender’s consent is required as a result of its Commitment), and/or repay outstanding Loans and terminate any outstanding Commitments of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with
Section 4.01(d),
provided
that, unless the Commitments are terminated, and Loans repaid, pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed
action) and the Hermes Agent shall specifically consent thereto,
provided
,
further
, that in any event the Borrower shall not have the right to replace a Lender, terminate its Commitment or repay its Loans solely as a result of the
exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 14.11(a).
14.12
Survival
. All indemnities set forth herein including, without limitation, in Sections 2.08, 2.10, 4.04, 14.01 and 14.05 shall, subject to Section 14.13 (to the extent applicable),
survive the execution, delivery and termination of this Agreement and the making and repayment of the Loans.
14.13
Domicile of Loans
. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans
pursuant to this Section 14.13 would, at the time of such transfer, result in increased costs under Section 2.08 or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be obligated to
pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).
14.14
Confidentiality
. Each Lender agrees that it will use its best efforts not to disclose without the prior consent of the
Parent or the Borrower (other than to their respective Affiliates or their respective Affiliates’ employees, auditors, advisors or counsel or to another Lender if the Lender or such Lender’s holding or parent company, Affiliates or board
of trustees in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section 14.14 to the same extent as such Lender) any information with
respect to the Parent or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document,
provided
that the Hermes Agent and the CIRR Agent may disclose any information to Hermes or KfW,
as CIRR mandatary,
provided
,
further
, that any Lender may disclose any such information (a) as has become generally available to the public other than by virtue of a breach of this Section 14.14 by the respective Lender,
(b) as may be required in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or similar organizations (whether in the United States, the
United Kingdom or elsewhere) or their successors, (c) as may be required in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any law, order, regulation or ruling applicable to such
Lender, (e) to an Agent, (f) to any prospective or actual transferee or participant in connection with any contemplated transfer or participation of
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any of the Commitments or any interest therein by such Lender,
provided
that such prospective transferee expressly agrees to be bound by the confidentiality provisions contained in this
Section 14.14 and (g) to Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or any person acting or purporting to act on any of their behalves. In the case of Section 14.14(g), each of
the Parent and the Borrower acknowledges and agrees that any such information may be used by Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or any person acting or purporting to act on any of their
behalves for statistical purposes and/or for reports of a general nature.
14.15
Register
. The Facility Agent shall
maintain a register (the “
Register
”) on which it will record the Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment and prepayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the assignment or transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitments shall not be effective until such assignment or transfer is recorded on the Register maintained by the Facility Agent with respect to ownership of
such Commitments and Loans. Prior to such recordation all amounts owing to the transferor with respect to such Commitments and Loans shall remain owing to the transferor. The registration of an assignment or transfer of all or part of any
Commitments and Loans (as the case may be) shall be recorded by the Facility Agent on the Register only upon the acceptance by the Facility Agent of a properly executed and delivered Transfer Certificate or Assignment Agreement pursuant to
Section 13.06(a) or 13.07(a), respectively.
14.16
Third Party Rights
. Other than the Other Creditors with respect
to Section 4.05, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement unless expressly provided to the contrary in a
Credit Document. Notwithstanding any term of any Credit Document, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.
14.17
Judgment Currency
. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Facility Agent could purchase the specified currency with such other currency at the Facility Agent’s Frankfurt office on the Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or an Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or an Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or an Agent (as the case may be) may in accordance with normal banking procedures purchase the
specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to such Lender or an Agent, as the case may be, in the specified currency, the Borrower agrees,
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to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or an Agent, as the case may be, against such loss,
and if the amount of the specified currency so purchased exceeds the sum originally due to any Lender or an Agent, as the case may be, in the specified currency, such Lender or an Agent, as the case may be, agrees to remit such excess to the
Borrower.
14.18
Language
. All correspondence, including, without limitation, all notices, reports and/or certificates,
delivered by any Credit Party to an Agent or any Lender shall, unless otherwise agreed by the respective recipients thereof, be submitted in the English language or, to the extent the original of such document is not in the English language, such
document shall be delivered with a certified English translation thereof. In the event of any conflict between the English translation and the original text of any document, the English translation shall prevail unless the original text is a
statutory instrument, legal process or any other document of a similar type or a notice, demand or other communication from Hermes or in relation to the Hermes Cover.
14.19
Waiver of Immunity
. The Borrower, in respect of itself, each other Credit Party, its and their process agents, and its and their properties and revenues, hereby irrevocably agrees that, to
the extent that the Borrower, any other Credit Party or any of its or their properties has or may hereafter acquire any right of immunity from any legal proceedings, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany or
elsewhere, to enforce or collect upon the Credit Document Obligations of the Borrower or any other Credit Party related to or arising from the transactions contemplated by any of the Credit Documents, including, without limitation, immunity from
service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution
upon a judgment, the Borrower, for itself and on behalf of the other Credit Parties, hereby expressly waives, to the fullest extent permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such
proceeding, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany or elsewhere.
14.20
“Know
Your Customer” Notice
. Each Lender hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act and/or other applicable laws and regulations, it is required to obtain, verify, and record information that identifies
each Credit Party, which information includes the name of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the PATRIOT Act and/or such other applicable laws and regulations, and
each Credit Party agrees to provide such information from time to time to any Lender.
14.21
Release of Liens and the
Parent Guaranty; Flag Jurisdiction Transfer
. (a) In the event that any Person conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of the Collateral to a Person that is not (and is not required to become) a
Credit Party in a transaction permitted by this Agreement or the Credit Documents (including pursuant to a valid waiver or consent), each Lender hereby consents to the release and hereby directs the Collateral Agent to release any Liens created by
any Credit Document in respect of such Collateral, and, in the case of a disposition of all of the Equity Interests of any Credit Party (other
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than the Borrower) in a transaction permitted by this Agreement and as a result of which such Credit Party would not be required to guaranty the Credit Document Obligations pursuant to Sections
9.10(c) and 15, each Lender hereby consents to the release of such Credit Party’s obligations under the relevant guarantee to which it is a party. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees, upon receipt of
reasonable advance notice from the Borrower, to execute and deliver or, at the Borrower’s expense, file such documents and perform other actions reasonably necessary to release the relevant guarantee, as applicable, and the Liens when and as
directed pursuant to this Section 14.21. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Borrower and at the Borrower’s expense to terminate the Liens and security interests created by the
Credit Documents when all the Credit Document Obligations (other than contingent indemnification Credit Document Obligations and expense reimbursement claims to the extent no claim therefore has been made) are paid in full and Commitments are
terminated. Any representation, warranty or covenant contained in any Credit Document relating to any such Equity Interests or asset of the Borrower shall no longer be deemed to be made once such Equity Interests or asset is so conveyed, sold,
leased, assigned, transferred or disposed of.
(b) In the event that the Borrower desires to implement a Flag Jurisdiction
Transfer with respect to the Vessel, upon receipt of reasonable advance notice thereof from the Borrower, the Collateral Agent shall use commercially reasonably efforts to provide, or (as necessary) procure the provision of, all such reasonable
assistance as any Credit Party may request from time to time in relation to (i) the Flag Jurisdiction Transfer, (ii) the related deregistration of the Vessel from its previous flag jurisdiction, and (iii) the release and discharge of
the related Security Documents provided that the relevant Credit Party shall pay all documented out of pocket costs and expenses reasonably incurred by the Collateral Agent or a Secured Creditor in connection with provision of such assistance. Each
Lender hereby consents, in connection with any Flag Jurisdiction Transfer and subject to the satisfaction of the requirements thereof to be satisfied by the relevant Credit Party, to (i) deregister the Vessel from its previous flag
jurisdiction and (ii) release and hereby direct the Collateral Agent to release the Vessel Mortgage. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees to execute and deliver or, at the Borrower’s expense,
file such documents and perform other actions reasonably necessary to release the Vessel Mortgage when and as directed pursuant to this Section 14.21(b).
14.22
Partial Invalidity
. If, at any time, any provision of the Credit Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. Any such illegal, invalid or
unenforceable provision shall to the extent possible be substituted by a legal, valid and enforceable provision which reflects the intention of the parties to this Agreement.
SECTION 15.
Parent Guaranty
.
15.01
Guaranty and Indemnity
. The
Parent irrevocably and unconditionally:
(i) guarantees to each Lender Creditor punctual performance by each
other Credit Party of all that Credit Party’s Credit Document Obligations under the Credit Documents; or
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(ii) undertakes with each Lender Creditor that whenever another Credit Party
does not pay any amount when due under or in connection with any Credit Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(iii) agrees with each Lender Creditor that if any obligation guaranteed by it is or becomes unenforceable, invalid or
illegal, it will, as an independent and primary obligation, indemnify that Lender Creditor immediately on demand against any cost, loss or liability it incurs as a result of a Credit Party not paying any amount which would, but for such
unenforceability, invalidity or illegality, have been payable by it under any Credit Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under
this Section 15 if the amount claimed had been recoverable on the basis of a guarantee.
15.02
Continuing
Guaranty
. This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Credit Party under the Credit Documents, regardless of any intermediate payment or discharge in whole or in part.
15.03
Reinstatement
. If any discharge, release or arrangement (whether in respect of the obligations of any Credit Party or any
security for those obligations or otherwise) is made by a Lender Creditor in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise,
without limitation, then the liability of the Guarantor under this Section 15 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
15.04
Waiver of Defenses
. The obligations of the Guarantor under this Section 15 will not be affected by an act, omission, matter or thing which, but for this Section 15, would reduce,
release or prejudice any of its obligations under this Section 15 (without limitation and whether or not known to it or any Lender Creditor) including:
(i) any time, waiver or consent granted to, or composition with, any Credit Party or other person;
(ii) the release of any other Credit Party or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any Credit Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any
security;
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(iv) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of a Credit Party or any other person;
(v) any amendment,
novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Credit Document or any other document or security including, without limitation, any change in the purpose of, any extension of or
increase in any facility or the addition of any new facility under any Credit Document or other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Credit Document or any other document or security; or
(vii) any insolvency or similar proceedings.
15.05
Guarantor Intent
. Without prejudice to the generality of Section 15.04, the Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any
(however fundamental) variation, increase, extension or addition of or to any of the Credit Documents and/or any facility or amount made available under any of the Credit Documents for the purposes of or in connection with any of the following:
business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new
borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
15.06
Immediate Recourse
. The Guarantor waives any right it may have of first requiring any Credit Party (or any trustee or agent
on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Section 15. This waiver applies irrespective of any law or any provision of a Credit
Document to the contrary.
15.07
Appropriations
. Until all amounts which may be or become payable by the Credit Parties
under or in connection with the Credit Documents have been irrevocably paid in full, each Lender Creditor (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Lender Creditor (or any trustee or agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
(ii) hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the
Guarantor’s liability under this Section 15.
15.08
Deferral of Guarantor’s Rights
. Until all amounts
which may be or become payable by the Credit Parties under or in connection with the Credit Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, the Guarantor will not exercise any rights which it may have by
reason of performance by it of its obligations under
the Credit Documents or by reason of any amount being payable, or liability arising,
under this Section 15:
(i) to be indemnified by a Credit Party;
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(ii) to claim any contribution from any other guarantor of any Credit
Party’s obligations under the Credit Documents;
(iii) to take the benefit (in whole or in part and
whether by way of subrogation or otherwise) of any rights of the Lender Creditors under the Credit Documents or of any other guarantee or security taken pursuant to, or in connection with, the Credit Documents by any Lender Creditor;
(iv) to bring legal or other proceedings for an order requiring any Credit Party to make any payment, or perform any
obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Section 15.01;
(v) to exercise any right of set-off against any Credit Party; and/or
(vi) to claim or prove as a creditor of any Credit Party in competition with any Lender Creditor.
If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or
become payable to the Lender Creditors by the Credit Parties under or in connection with the Credit Documents to be repaid in full on trust for the Lender Creditors and shall promptly pay or transfer the same to the Facility Agent or as the Facility
Agent may direct for application in accordance with Section 4.
15.09
Additional Security
. This guarantee is in
addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Credit Party.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as a deed on the date first above written.
Signed as a deed for and on behalf of NCL CORPORATION LTD., a Bermuda
company, as Parent and Guarantor, by [full name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010.
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|
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
|
Signed as a deed and delivered on behalf of BREAKAWAY TWO, LTD., a Bermuda company, as Borrower, by [full
name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010.
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
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Signed as a deed and delivered on behalf of KFW IPEX-BANK GMBH, a bank organized under the laws of Germany,
Individually and as Facility Agent, Collateral Agent, a Joint Lead Arranger and CIRR Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
|
Signed as a deed and delivered on behalf of NORDEA BANK NORGE ASA, a bank organized under the laws of
Norway, Individually and as Documentation Agent and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of DnB NOR BANK ASA, a bank organized under the laws of Norway,
Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, a bank organized under
the laws of Germany, Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
|
Signed as a deed and delivered on behalf of HSBC BANK PLC, a bank organized under the laws of England,
Individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
|
Signed as a deed and delivered on behalf of COMMERZBANK AKTIENGESELLSCHAFT, a bank organized under the laws
of Germany, as Hermes Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
Signed as a deed and delivered on behalf of KFW, a public credit institution established under the laws of
Germany, Individually and as CIRR Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the public credit institution.
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
SCHEDULE 1.01(a)
COMMITMENTS
|
|
|
|
|
|
|
Lender
|
|
Commitments
|
|
|
Deutsche Schiffsbank Aktiengesellschaft
|
|
|
[*]
|
|
|
DnB NOR Bank ASA
|
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[*]
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|
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HSBC Bank plc
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[*]
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KfW IPEX-Bank GmbH
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|
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[*]
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Nordea Bank Norge ASA
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[*]
|
|
|
Total
|
|
€
|
529,846,154
|
|
SCHEDULE 1.01 (b)
MANDATORY COSTS
|
1.
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
|
2.
|
On each Payment Date (or as soon as possible thereafter) the Facility Agent shall calculate, as a percentage rate, a rate (the “
Additional Cost Rate
”)
for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Facility Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the percentage participation of
each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
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3.
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Facility
Agent. This percentage will be certified by that Lender in its notice to the Facility Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender’s participation in all Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
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4.
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows:
|
in relation to a sterling Loan:
[*] per cent per annum
in relation to a Loan in any currency other than sterling:
[*] per cent per annum.
Where:
|
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
|
|
|
B
|
is the percentage rate of interest (excluding the Applicable Margin, the CIRR Rate and the Mandatory Cost) and, if the Loan is an Unpaid Sum, the additional rate of
interest specified in paragraph (b) of Section 2.06 payable on the Loan.
|
|
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C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of
England.
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|
|
D
|
is the percentage rate per annum payable by the Bank of England to the Facility Agent on interest bearing Special Deposits.
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|
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E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Facility Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
|
|
5.
|
For the purposes of this Schedule:
|
“
Eligible Liabilities
” and “
Special Deposits
” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
“
Fees Rules
” means the rules on periodic fees contained in the
Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
“
Fee Tariffs
” means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to
the Fees Rules but taking into account any applicable discount rate);
“
Participating Member State
”
means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“
Tariff Base
” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules; and
“
Unpaid Sum
” means any sum due and payable but unpaid by any Credit Party under the Credit Documents.
|
6.
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not
as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
|
|
7.
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Facility
Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
|
|
8.
|
Each Lender shall supply any information required by the Facility Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
|
|
a)
|
the jurisdiction of its Facility Office; and
|
|
|
b)
|
any other information that the Facility Agent may reasonably require for such purpose.
|
Each Lender shall promptly notify the Facility Agent of any change to the information provided by it pursuant to this paragraph.
|
9.
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the
Facility Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
|
|
10.
|
The Facility Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall
be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
|
|
11.
|
The Facility Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
|
|
12.
|
Any determination by the Facility Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
|
|
13.
|
The Facility Agent may from time to time, after consultation with the Parent and the Lenders, determine and notify to all parties to the Credit Agreement any amendments
which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
|
SCHEDULE 5.07
NOTICES, ACKNOWLEDGMENTS AND CONSENTS
Notices
1. Notice of Assignment of the Construction Contract for Breakaway Two, Ltd. in the form of Part 1 of Schedule 1 to the Assignment of Contracts shall be
delivered to the Yard.
2. Notice of Assignment of Refund Guarantees for Breakaway Two, Ltd. in the form of either (x) Part 2 of Schedule
1 to the Assignment of Contracts or (y) Schedule 1 to the Assignment of KfW Refund Guarantees, as applicable, shall be delivered to the applicable issuer of Refund Guarantees in respect of the Refund Guarantee(s) issued on or prior to the
Initial Borrowing Date.
Financing Statements
1. UCC-1 shall be filed with the Florida Secured Transaction Registry naming Breakaway Two, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
SCHEDULE 5.10
INITIAL BORROWING DATE OPINIONS
|
1.
|
Pursuant to Section 5.10(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
The Transaction Documents provide that they are to be governed by English law. To the extent that the Transaction Documents are governed by English law or the law
of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to the Transaction Documents. However, we
are of the opinion that if the Transaction Documents were governed by the laws of the state of New York (without reference to New York choice of law principles that would result in the application of the laws of another jurisdiction), the execution
and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document to which it is a party will not, violate, breach, or constitute
a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the assets of such Credit Party or give any other party thereto the
right to accelerate under, any existing obligation or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to the Officer’s Certificate. If any Other Agreement is
governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical terms would mean what lawyers generally understand them to
mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination.
|
|
2.
|
Pursuant to Section 5.10(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bermudan Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Each of the Companies is duly incorporated with limited liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make
any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
|
|
|
(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
|
|
|
(i)
|
are within its corporate powers and have been duly authorised; and
|
|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
|
|
|
(c)
|
Each of the English Law Documents has been duly executed by the Companies party thereto and constitutes legal, valid and binding obligations of such Companies,
enforceable in Bermuda in accordance with its terms.
|
|
|
(d)
|
The Bermuda Law Document has been duly executed by NCLI, constitutes legal, valid and binding obligations of NCLI and creates a valid security interest, enforceable in
Bermuda in accordance with its terms.
|
|
|
(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
|
|
|
(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
|
|
|
(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
|
|
|
(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
|
|
|
(i)
|
The choice of the English Laws as the governing law of the English Law Documents is a valid choice of law and the submission by the Companies to the exclusive
jurisdiction of the English Courts is valid and binding upon the Companies and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(j)
|
The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
|
|
|
(k)
|
None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
|
|
(l)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
|
|
|
(m)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Companies by any party to the English Law Documents
based upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in
the Protection of Trading Interests Act 1981) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the merits of the case
provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
|
|
(n)
|
Under Section 3 of the 1958 Act, the registration of the judgment of the English Courts in the Supreme Court of Bermuda involves the conversion of the judgment
debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by the Supreme Court of Bermuda to
be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement.
|
|
|
(o)
|
No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
|
|
|
(p)
|
It is not necessary under the laws of Bermuda:
|
|
|
(i)
|
in order to enable any party to enforce its rights under the Opinion Documents; or
|
|
|
(ii)
|
by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
|
that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
|
3.
|
Pursuant to Section 5.10(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, English Counsel to the Documentation Agent
for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
the obligations expressed to be assumed by each of the Borrower and the Parent in the Credit Documents to which it is a party constitute its valid, legally binding and
enforceable obligations;
|
|
|
(b)
|
there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Credit Documents;
|
|
|
(c)
|
English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Credit Documents and will regard express submission by
the Borrower and the Parent to the jurisdiction contained in the Credit Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
|
|
|
(d)
|
no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Credit Documents;
|
|
|
(e)
|
neither the Construction Contract nor the Original Refund Guarantee contains any restrictions which prevent them from being assigned to, or charged in favour of, the
Collateral Agent; and
|
|
|
(f)
|
each Vessel 1 Assignment Agreement is effective to create valid security interests in favour of the Collateral Agent.
|
|
4.
|
Pursuant to Section 5.10(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, German Counsel to the Documentation Agent for
the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
The Declaration of Guarantee constitutes a valid and legally binding guarantee of the Federal Republic of Germany towards [
—
] subject to the specific
provisions set out in the Declaration of Guarantee and subject to the applicable General Terms and Conditions and Guidelines.
|
5.
|
Pursuant to Section 5.10(e) and subject to the assumptions, qualifications and definitions set forth in such opinion, Florida Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
To the extent that a security
interest in the Collateral can be perfected by filing a UCC-1 financing statement in the State of Florida, perfection would occur by filing such financing statement with the office described in Annex 2 to such opinion. Note that, if the debtor
purporting to grant such security interest changes the location of its chief executive office to another location, the effectiveness of the Financing Statements will cease on the expiration of four months after such change or, if earlier, when
perfection would have otherwise ceased, unless such security interest becomes perfected under the law of such other location prior to such expiration.
SCHEDULE 6.10
MATERIAL LITIGATION
None.
SCHEDULE 7.05
DELIVERY DATE OPINIONS
|
1.
|
Pursuant to Section 7.05(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, English Counsel to the Documentation Agent
for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
the obligations expressed to be assumed by the Borrower in the Opinion Documents constitute its valid, legally binding and enforceable obligations;
|
|
|
(b)
|
there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Opinion Documents;
|
|
|
(c)
|
English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Opinion Documents and will regard express submission by
the Borrower to the jurisdiction contained in the Opinion Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
|
|
|
(d)
|
no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Opinion Documents; and
|
|
|
(e)
|
each Assignment Agreement is effective to create valid security interests in favour of the Collateral Agent.
|
|
2.
|
Pursuant to Section 7.05(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
The Transaction Documents provide that they are to be governed by English law. To the extent that the Transaction Documents are governed by
English law or the law of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to the Transaction
Documents. However, we are of the opinion that if the Transaction Documents were governed by the laws of the state of New York (without reference to New York choice of law principles that would result in the application of the laws of another
jurisdiction), the execution and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document to which it is a party will not,
violate, breach, or constitute a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the assets of such Credit Party or give
any other party thereto the right to accelerate under, any existing obligation
|
|
|
or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to the Officer’s Certificate. If any Other Agreement is
governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical terms would mean what lawyers generally understand them to
mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination.
|
|
3.
|
Pursuant to Section 7.05(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bahamian Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Under the laws of the Bahamas the Borrower is the registered owner of record of sixty-four sixty-fourth shares, being the whole thereof of the [
insert vessel
name
] and the Vessel Mortgage constitutes the valid and legally binding act of the Borrower and the Vessel Mortgage is enforceable in accordance with its terms, and further, the Vessel Mortgage creates in favour of the Mortgagee a valid and
effective first priority legal mortgage over the [
insert vessel name
] and there are no other charges, mortgages or encumbrances on record with respect thereto. It should be noted that maritime liens as set out in Section 281 of The
Merchant Shipping Act of The Bahamas have priority over mortgages even if such liens are incurred after a mortgage has been registered.
|
|
|
(b)
|
No further registration authorization, approval or consent or other official action in The Bahamas is necessary to render any of the Documents or the security
respectively created thereby valid, perfected and enforceable.
|
|
|
(c)
|
All filing, registration and recording fees required under the laws of The Bahamas in connection with the Vessel Mortgage and other fees necessary to ensure the
validity, effectiveness and priority of any liens, charges and encumbrances created under the Vessel Mortgage have been paid.
|
|
|
(d)
|
The courts of The Bahamas will recognize as a valid judgment and enforce any final, conclusive and enforceable judgment obtained against a mortgagor in a United Kingdom
court without re-examination of the merits of the case subject to registration of the judgment under the provisions of the Reciprocal Enforcements of Judgments Act of the Bahamas.
|
|
|
(e)
|
The Vessel Mortgage constitutes the legal, valid and binding obligations of the Borrower and is enforceable in accordance with its terms.
|
|
|
(f)
|
No consents, authorizations or other approvals are required from any governmental or other authority of The Bahamas for the execution, delivery or performance of any of
the Documents by any of the parties thereto or the consummation of the transactions contemplated therein.
|
|
|
(g)
|
Neither the execution nor delivery of the Documents by the Borrower, nor the performance of its obligations under the Documents, will contravene any existing applicable
law or regulation of The Bahamas.
|
|
|
(h)
|
The Borrower is not entitled or required under any existing applicable law or regulation of The Bahamas to make any withholding or deduction in respect of any tax or
otherwise from any payment which it is or may be required to make under the Documents (or any of them) and other than the fees paid in connection with the registration of the Vessel Mortgage no tax, impost, duty or registration fee is payable on any
of the Documents in The Bahamas save for registration fees on the Vessel Mortgage.
|
|
|
(i)
|
Other than the fees paid in connection with the registration of the Vessel Mortgage, no stamp or registration duty or similar taxes or charges are payable in The
Bahamas in respect of the Documents.
|
|
|
(j)
|
Under the laws of The Bahamas, the Mortgagee will not be deemed to be resident, domiciled or carrying on any commercial activity in The Bahamas or subject to any tax of
The Bahamas as a result of its entry into the Documents or the performance of any of the transactions contemplated thereby. It is not necessary for the Mortgagee to be authorized or qualified to carry on business in The Bahamas or establish a place
of business in The Bahamas for the entry into or performance of the Documents.
|
|
|
(k)
|
It is not necessary or advisable to take any further action in the future in order to preserve the security interests referred to above or the priority thereof in
connection with the Vessel Mortgage.
|
|
4.
|
Pursuant to Section 7.05(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, Bermudan Counsel to the Credit Parties opine
as follows (capitalized terms have the meanings ascribed to them in such opinion):
|
|
|
(a)
|
Each of the Companies is duly incorporated with limited liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make
any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
|
|
|
(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
|
|
|
(i)
|
are within its corporate powers and have been duly authorised; and
|
|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
|
|
|
(c)
|
The relevant Opinion Documents have been duly executed by each of the Companies and constitute legal, valid and binding obligations of each of the Companies,
enforceable in Bermuda in accordance with its terms.
|
|
|
(d)
|
Based solely on the Litigation Searches, there are no judgments against, nor legal or governmental actions or proceedings pending in Bermuda to which any of the
Companies is subject.
|
|
|
(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
|
|
|
(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
|
|
|
(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
|
|
|
(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
|
|
|
(i)
|
The choice of the English Laws as the governing law of the English Law Documents is a valid choice of law and the submission by each of the Companies to the exclusive
jurisdiction of the English Courts is valid and binding upon them and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(j)
|
The choice of the Bahamian Laws as the governing law of the Bahamian Law Document is a valid choice of law and the submission by the Borrower to the jurisdiction of the
Bahamian Courts is valid and binding upon the Borrower and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
|
|
|
(i)
|
which such court considers to be procedural in nature;
|
|
|
(ii)
|
which are revenue or penal laws; or
|
|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
|
|
|
(k)
|
The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
|
|
|
(l)
|
None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
|
|
(m)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
|
|
|
(n)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Borrower by any party to the English Law Documents based
upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in the
Protection of Trading Interests Act 1981 (the “1981 Act”)) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the
merits of the case provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
|
|
(o)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Borrower by any party to the Bahamian Law Document based
upon such documents in the Bahamian Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in 1981
Act) and such a judgment will be enforced by the Supreme Court of Bermuda under the 1958 Act without re-examination of the merits of the case provided that:
|
|
|
(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
|
|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
|
|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
|
|
|
(p)
|
Under Section 3 of the 1958 Act, the registration of the judgment of any of the courts referred to in paragraphs 14 to 15 in the Supreme Court of Bermuda involves
the conversion of the judgment debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by
the Supreme Court of Bermuda to be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for
enforcement.
|
|
|
(q)
|
No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
|
|
|
(r)
|
It is not necessary under the laws of Bermuda:
|
|
|
(i)
|
in order to enable any party to enforce its rights under the Opinion Documents; or
|
|
|
(ii)
|
by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
|
that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
SCHEDULE 8.03
EXISTING AGREEMENTS
None.
SCHEDULE 8.12
CAPITALIZATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Credit Party
|
|
Owner
|
|
Type of
Shares
|
|
|
Number of
Shares
Owned
|
|
|
Percent of
Outstanding
Shares Owned
|
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
|
Common
|
|
|
|
997,218,181
|
|
|
|
100
|
%
|
SCHEDULE 8.13
SUBSIDIARIES
|
|
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
|
Jurisdiction of
Organization
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Maritime Investment, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
NCL America Holdings, LLC
|
|
Arrasas Limited
|
|
|
100
|
|
|
Delaware
|
|
NCL America LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
NCL (Bahamas) Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
NCL Cruises Ltd.
|
|
NCL Holding ASA
|
|
|
100
|
|
|
Bermuda
|
|
NCL Holding ASA
1
|
|
Arrasas Limited
|
|
|
100
|
|
|
Norway
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Dawn Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Epic, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Gem, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Pearl, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Spirit, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Star Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Sun Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Polynesian Adventure Tours, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Hawaii
|
|
PAT Tours, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
Pride of America Ship Holding, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
Pride of Hawaii, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
1
|
This company is under voluntary liquidation.
|
SCHEDULE 8.19
VESSEL
N/A
SCHEDULE 8.21
APPROVED CLASSIFICATION SOCIETIES
American Bureau of Shipping
Nippon Kaiji Kyokai
Germanischer Lloyd
Lloyd’s Register of Shipping
Bureau Veritas
Det Norske Veritas
SCHEDULE 9.03
REQUIRED INSURANCE
1. For the purpose of this Schedule 9.03, the
following terms shall have the meanings ascribed to them as follows:
“
Compulsory Acquisition Compensation
”
shall mean all moneys or other compensation whatsoever payable by reason of the compulsory acquisition of the Vessel other than by requisition for hire;
“
Insurances
” shall mean all policies and contracts of the insurance and entries of the Vessel in a protection and indemnity or war risks association which are effected in respect of the
Vessel, its freight, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all Compulsory Acquisition Compensation;
“
Security Period
” shall mean that period from the Delivery Date until the date on which all Loans shall have been fully
paid, satisfied and extinguished.
“
Total Loss
” shall mean any actual or constructive or arranged or agreed
or compromised total loss or compulsory acquisition of the Vessel (excluding any requisition for hire).
2. From the Delivery
Date of the Vessel, the Borrower shall insure the Vessel, or procure that the Vessel is insured, in its name and keep the Vessel and procure that the Vessel is kept insured on an agreed value basis for an amount in Dollars approved by the Collateral
Agent,
provided
that:
(a) the insured value of the Vessel shall at all times be equal to or greater than its fair
market value,
(b) the insured value of the Vessel shall be equal to or greater than [*] of the then applicable Total
Commitment, and
(c) the hull and machinery insured value for the Vessel shall at all times be equal to no less than [*] of
the total insured value of the Vessel and no more than [*] of the total insured value of the Vessel shall consist of hull interest and freight interest insurance
through internationally recognized independent first class insurance companies, underwriters, war risks and protection and indemnity associations reasonably acceptable to the Collateral Agent in each
instance on terms and conditions approved by the Collateral Agent (with such approval not to be unreasonably withheld) including as to deductibles but at least in respect of:
(1) marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London insurance markets under English marine policies, or the Norwegian Plan or
Collateral Agent-approved policies containing the ordinary conditions applicable to similar vessels;
(2) war risks including the Missing Vessel Clause, terrorism, piracy and confiscation, and,
should Institute War and Strike Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(3) excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not
recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
(4) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the Collateral Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period;
(5) when and
while the Vessel is laid-up, in lieu of hull insurance, normal port risks;
(6) such other risks as the Collateral Agent may
from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first class and prudent
owners and/or financiers in the international market in respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Borrower or the Collateral Agent) such person shall
if so required by the Collateral Agent execute a first priority assignment and/or transfer of its interest in such insurances in favor of the Collateral Agent in similar terms mutatis mutandis to the relevant Assignment of Insurances.
3. The Collateral Agent at the cost of the Borrower or the Parent shall take out, in each case, for an amount in Dollars approved by the
Collateral Agent but not being, collectively, less than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Collateral Agent may reasonably require, the Parent
and the Borrower having no interest or entitlement in respect of such policies; the Collateral Agent undertakes to use its reasonable endeavors to match the premium level that the Borrower or the Parent would have paid if they had arranged such
cover on such conditions (as demonstrated to the reasonable satisfaction of the Collateral Agent).
4. If the Vessel shall
trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Borrower shall comply strictly with the
requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of the Vessel Mortgage and in particular before
such trade is commenced and during the entire period during which such trade is carried on the Borrower shall:
(i) pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit
available to it for the Vessel in the market;
(ii) make all such quarterly or other voyage declarations as may from time
to time be required by the Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Collateral Agent copies of such declarations;
(iii) submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by
the Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Collateral Agent copies of reports made in respect of such surveys;
(iv) implement any recommendations contained in the reports issued following the surveys referred to in sub-clause
(iii) above within the time limit specified therein and provide evidence satisfactory to the Collateral Agent that the protection and indemnity insurers are satisfied that this has been done;
(v) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Borrower or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the Collateral Agent
on demand with such information or evidence as it may reasonably require of such compliance;
(vi) procure that
the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Collateral Agent with evidence that this
is so; and
(vii) strictly comply with any operational or structural regulations issued from time to time by
any relevant authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution.
5. The Borrower shall give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form
reasonably approved by the Collateral Agent.
6. The Borrower shall execute and deliver all such documents and do all such
things as may be necessary to confer upon the Collateral Agent legal title to the Insurances in respect of the Vessel and to procure that the interest of the Collateral Agent is at all times filed with all slips, cover notes, policies and
certificates of entry and to procure (a) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the
Vessel and (b) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel.
7. At the Borrower’s expense the Borrower will cause such insurance broker and the P
& I club or association providing P & I insurance to agree to advise the Collateral Agent by telex or telecopier confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any
premium and of any other act or omission on the part of the Borrower of which it has knowledge and which might invalidate or render unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such
unpaid premium or call, such right being exercisable by the Collateral Agent on a vessel by vessel and not on a fleet basis. In addition, the Borrower or the Parent shall promptly provide the Collateral Agent with any information which the
Collateral Agent reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the adequacy of the insurances effected or proposed to be effected in accordance with the provisions
contained herein as of the date hereof or in connection with any renewal thereof, and the Borrower or the Parent shall upon demand indemnify the Collateral Agent in respect of all reasonable fees and other expenses incurred by or for the account of
the Collateral Agent in connection with any such report; provided the Collateral Agent shall be entitled to such indemnity only for one such report during any period of twelve months.
8. The Borrower shall procure that each of the relevant brokers and associations furnish the Collateral Agent with a letter of
undertaking in such usual form as may be reasonably required by the Collateral Agent and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel.
9. The Borrower shall punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel
and to produce all relevant receipts when so required by the Collateral Agent;
10. The Borrower shall renew each of the
Insurances on the Vessel at least [*] Business Days before the expiry thereof and give immediate notice to the Collateral Agent of such renewal and procure that the relevant brokers or associations shall promptly confirm in writing to the Collateral
Agent that such renewal is effected, it being understood by the Borrower that any failure to renew the Insurances on the Vessel at least [*] Business Days before the expiry thereof or to give or procure the relevant notices of such renewal shall
constitute an Event of Default.
11. The Borrower shall arrange for the execution of such guarantees as may from time to time
be required by any protection and indemnity and/or war risks association.
12. The Borrower shall furnish to the Collateral
Agent from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed.
13. The Borrower shall not agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the
Collateral Agent (which approval shall not be unreasonably withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Borrower’s consent, in which case the Borrower shall notify the
Collateral Agent of such variation in a timely manner) nor do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid,
void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first
obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the Insurances is imposed as
aforesaid and in the absolute opinion of the Collateral Agent its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Collateral Agent would be adversely affected, the Borrower
undertakes promptly to make such changes to the Insurances, or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Borrower at that time, as the Collateral Agent
shall reasonably require.
14. The Borrower shall not, without the prior written consent of the Collateral Agent, settle,
compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss.
15. The Borrower shall promptly furnish the Collateral Agent with full information regarding any casualties or other accidents or damage
to the Vessel involving an amount in excess of [*].
16. The Borrower shall apply or ensure the appliance of all such sums
receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received.
17. In the event of the Borrower defaulting in insuring and keeping insured its Vessel as hereinbefore provided then the Collateral Agent
may (but shall not be bound to) insure the Vessel or enter the Vessel in such manner and to such extent as the Collateral Agent in its discretion thinks fit and in such case all the cost of effecting and maintaining such Insurance together with
interest thereon shall be paid on demand by the Borrower to the Collateral Agent.
SCHEDULE 10.01
EXISTING LIENS
None.
SCHEDULE 14.03 A
CREDIT PARTY ADDRESSES
If to any Credit Party:
7665 Corporation Center Drive
Miami, Florida 33126
United States of America
Attn: Chief Financial Officer and General Counsel
With copies to
:
Apollo Management, L.P.
9 West
57
th
Street
New York, NY 10019
Attn: Steve Martinez
Tel. No.: (212) 515-3200
Fax
No.: (212) 515-3288
and
O’Melveny & Myers LLP
7 Times
Square
New York, NY 10036
Attn:
Brad Finkelstein
Tel. No.: (212) 326-2000
Fax No.: (212) 326-2600
SCHEDULE 14.03 B
LENDER ADDRESSES
|
|
|
|
|
INSTITUTIONS
|
|
ADDRESSES
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:
claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
KfW IPEX-Bank GmbH,
as
Facility Agent for the Lenders party
to the Credit Agreement
referred to below
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
]
Ladies and Gentlemen:
The undersigned, BREAKAWAY TWO, LTD., a Bermuda company
(the “
Borrower
”), refers to the Credit Agreement, dated as of [
], 2010 (as amended, restated, novated, modified and/or supplemented from time to time,
the “
Credit Agreement
”, unless otherwise defined herein, capitalized terms defined therein being used herein as therein defined), among NCL CORPORATION LTD., a Bermuda company (the “
Parent
”), the Borrower, the
Lenders from time to time party thereto, you, as Facility Agent, Collateral Agent under the Security Documents and as CIRR Agent, NORDEA BANK NORGE ASA, as Documentation Agent, COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent, and the other parties
thereto and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement, that the Borrower hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to
such Borrowing (the “
Proposed Borrowing
”) as required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________ (the “
Proposed Borrowing Date
”).
1
(ii) The portion of the Total Commitments to be utilized on the Proposed Borrowing Date (the “
Proposed Utilized Commitments
”) is €___________.
|
1
|
Shall be a Business Day at least three Business Days after the date hereof,
provided
that (in each case) any such notice shall be deemed to have
been given on a certain day only if given before 11:00 a.m. (Frankfurt time) on such day (unless such 11:00 a.m. deadline is waived in the case of the Initial Proposed Borrowing Date).
|
Exhibit A
Page 2
(iii) The Parent and/or the Borrower [have] [have not] entered into
Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes and/or the Yard on the Proposed Borrowing Date [and the Dollar Equivalent of the aggregate principal amount of the Proposed Utilized Commitments is
[
]].
2
(iv) The proceeds of the Proposed Borrowing shall be deposited in the following
accounts:
|
|
|
|
|
|
|
|
|
|
|
Bank and Account No.
|
|
Account Name
|
|
|
Amount to be Disbursed
(indicate Dollars or
Euros)
3
|
|
|
[ ]
|
|
|
[
|
]
|
|
|
[
|
]
|
(v) [Attached hereto as
Annex A
is evidence of the Earmarked Foreign Exchange Arrangements referred to in clause (iv) above.]
In
connection with the Proposed Borrowing, the Borrower hereby certifies as follows:
(i) As of the Proposed Borrowing Date, all
conditions and requirements under the Construction Contract required to be satisfied on such Proposed Borrowing Date have been satisfied, other than those that are not materially adverse to the Lenders.
(ii) Both on the date hereof and as of the Proposed Borrowing Date, the representations and warranties made by each Credit Party in or
pursuant to the Credit Documents are true and correct in all material respects, on and as of such Proposed Borrowing Date as if made on and as of such Proposed Borrowing Date, unless stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as of such earlier date.
(iii) Both on the date
hereof and as of the Proposed Borrowing Date after giving effect to the Proposed Borrowing, no Default or Event of Default is or will be continuing.
|
2
|
Dollar Equivalent to be included if the Borrower has entered into Earmarked Foreign Exchange Arrangements.
|
|
3
|
Euro disbursement only available if the Parent and/or the Borrower have not entered into Earmarked Foreign Exchange Arrangements.
|
Exhibit A
Page 3
|
|
|
|
|
Very truly yours,
BREAKAWAY TWO, LTD.
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
Title:
|
Annex A
Evidence of Earmarked Foreign Exchange Arrangements
[See attached.]
Aon BankAssure Insurance Services
EXHIBIT B-1
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
[[*] – – 10 pages]
EXHIBIT B- 2
Form of Exhibit B- 2
[Letterhead of Insurance Broker]
To:
KFW IPEX-Bank GmbH, as Collateral Agent,
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Claudia Wenzel/
Christian Schweiger
Copy to:
Nordea Bank Norge ASA
DnB Nor Bank ASA
Deutsche Schiffsbank AG
HSBC Bank
plc
From:
[
Insert name of
Insurance Broker
]
Date: [
—
], 20[
—
]
Dear Sirs,
1. This Certificate is
delivered pursuant to Section 7.02 of the Credit Agreement dated as of [
—
], 2010 and made among Breakaway Two, Ltd, as Borrower, NCL Corporation Ltd. (“
NCLC
”) as Parent, the
Lender Creditors from time to time party thereto and KFW IPEX-Bank GmbH, as Facility Agent, Collateral Agent and CIRR Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”).
Capitalized terms used and not otherwise defined in this Certificate shall have the meanings assigned to such terms in the Credit Agreement.
2. We hereby certify to you that, with respect to the Vessel, on and as of the date of this Certificate:
(i) the insurance cover referred to below is placed and maintained with such insurance companies and/or underwriters and/or clubs, in such amounts,
against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Facility Agent, the Collateral Agent, the CIRR Agent and/or the Lender Creditors as mortgagees of the Vessel; and
(ii) the insurance cover referred to in this Certificate conforms with the Required Insurances including (without limitation) hull and
machinery, war risks, loss of hire (if applicable) and protection and indemnity insurance set forth in Schedule 9.03 of the Credit Agreement.
1
3. The insurance cover referred to in paragraph 2(i) above comprises [
Insert description of the
insurances maintained on the Vessel
.].
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Yours truly,
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For and on behalf of
[
Insert name of Insurance Broker
]
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2
EXHIBIT C
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [•] 2010
KFW IPEX-BANK GMBH
(as Facility Agent)
KFW
(as CIRR Mandatary)
THE BANKS AND INSTITUTIONS
listed in Appendix 2
(as Lenders)
INTERACTION
AGREEMENT
in relation to an Export Credit Facility Agreement
dated 17 November 2010
Hull No. S.692 at Meyer Werft GmbH
Papenburg, Germany
Contents
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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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1
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2
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KfW IPEX-Bank GmbH as agent
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2
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3
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Advance, interest, repayment, prepayment, disbursement and netting
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3
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4
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Additional security
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4
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5
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Miscellaneous
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4
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6
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Counterparts and governing law
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6
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Appendix 1 Forms of Refinancing Agreement
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9
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Appendix 2 The Banks
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10
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THIS INTERACTION AGREEMENT
is made on [
—
] 2010
BETWEEN:
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(1)
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KFW IPEX-BANK GMBH
, acting through its office at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany acting as facility agent (in that capacity the
“
Facility Agent
” and “
CIRR Agent
”); and
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(2)
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KFW,
represented by KFW IPEX-BANK GMBH, acting through its office at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany (the “
CIRR
Mandatary
”); and
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(3)
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THE BANKS AND INSTITUTIONS
listed in Appendix 2 (the “
Lenders
” and any one of them a “
Lender
”).
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WHEREAS
this Interaction Agreement (the “
Agreement
”) is supplemental to:
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(A)
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a credit agreement dated 17 November 2010 relating to the financing of provisional hull number S.692 at Meyer Werft GmbH, Papenburg, Germany made between (among
others) (a) the Borrower, (b) the Parent, (c) the Lenders, (d) the Facility Agent, (e) the CIRR Agent, (f) the Collateral Agent, (g) the Documentation Agent and (h) the Hermes Agent pursuant to which the
Lenders will make available to the Borrower a multi-draw term loan credit facility in an aggregate principal amount of up to €529,846,154 (the “
Loans
”) to finance in part the acquisition of provisional hull no S.692 at the yard
of Meyer Werft GmbH and related fees (the “
Credit Agreement
”);
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(B)
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the refinancing agreements dated the date hereof relating to the Commitments of the Lenders entered into between CIRR Mandatary and each Bank (as defined below) in the
forms attached as Appendix 1 hereto (each a “
Refinancing Agreement
” and together the “
Refinancing Agreements
”);
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(C)
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the CIRR General Terms and Conditions as set out in Annex 2 to each Refinancing Agreement; and
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1
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Definitions and interpretation
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1.1
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Terms used in the Credit Agreement have the same meaning in this Agreement unless otherwise defined herein.
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1.2
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The following terms have the following meanings when used in this Agreement:
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“
Bank
” refers to each Lender both in its capacity as a Lender under the Credit Agreement and as the Bank under the relevant Refinancing Agreement.
“
KfW Rate
” means the interest rate payable to the CIRR Mandatary under the Refinancing Agreements.
“
Lender
” refers to a party both in its capacity as Lender under the Credit Agreement and as a Bank under a Refinancing
Agreement.
“
Refinancing Loan
” means the loan made by the CIRR Mandatary to a Bank pursuant to the Refinancing
Agreement to which that Bank is a party.
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1.3.1
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words denoting the plural number include the singular and vice versa;
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1.3.2
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words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
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1.3.3
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references to Recitals, Clauses, Sections and Appendices are references to recitals, clauses of, sections to and appendices to this Agreement;
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1.3.4
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references to this Agreement include the Recitals and the Appendices;
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1.3.5
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the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this
Agreement;
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1.3.6
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references to any document (including, without limitation, to all or any of the Credit Documents) are, unless the context otherwise requires, references to that
document as amended, supplemented, novated or replaced from time to time;
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1.3.7
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references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted;
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1.3.8
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references to any Lender, Bank or Secured Creditor include its successors, permitted transferees and permitted assignees; and
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1.3.9
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references to times of day are to Frankfurt am Main time;
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1.4
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This Agreement operates to amend and supplement the Refinancing Agreement in accordance with its terms and in the event of any inconsistency between (i) the terms
of the Refinancing Agreement and the CIRR General Terms and Conditions incorporated therein and (ii) this Agreement, the terms of this Agreement will prevail.
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2
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KfW IPEX-Bank GmbH as agent
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2.1
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The CIRR Mandatary and all Banks agree that the Facility Agent will act as the agent of the Banks for the purposes of all Refinancing Agreements in relation to the
following matters:
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2.1.1
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confirmation to the CIRR Mandatary of the fulfilment of conditions precedent in relation to the delivery of a Drawdown Notice, under section 5.1 of each
Refinancing Agreement;
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2.1.2
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making disclosures to the CIRR Mandatary of circumstances pertaining to the Loans, its proper repayment or collateralisation available on a regular basis as
required under sections 8.2 and 9.1 of each Refinancing Agreement. The Facility Agent will however only disclose such information that is available to it;
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2
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2.1.3
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notification of all amendments and addenda to the Credit Agreement under section 9.2 of each Refinancing Agreement; and
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2.1.4
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immediately to report if, by the conclusion of each Refinancing Agreement, there are material changes or additions to the information given at the time of the
application for an interest make-up commitment as required under section 9.1 of the CIRR General Terms and Conditions.
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The CIRR Mandatary agrees to accept performance by the Facility Agent as the agent and assistant of the Banks, as applicable according to Clause 2.1 above, as aforesaid to the CIRR Mandatary as full
performance of all Banks' obligations under the relevant sections of the Refinancing Agreements.
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2.2
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The Facility Agent further agrees to act as agent or assistant of each Bank, as applicable according to Clause 2.1 above, in its capacity as the Facility Agent, to
notify the Parent and the Borrower of the conclusion of each Refinancing Agreement with the CIRR Mandatary.
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2.3
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The Banks, the CIRR Mandatary and the Facility Agent agree in relation to section 4.2 of each Refinancing Agreement that the Facility Agent has been appointed as the
Facility Agent on behalf of all Banks and in such capacity will discharge the responsibilities of all Banks under section 4.2 of each Refinancing Agreement and further agree that the Facility Agent will discharge those responsibilities for itself
and all Banks if it acts in accordance with the customary standards and duties of facility agents in high value syndicated loan transactions.
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3
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Advance, interest, repayment, prepayment, disbursement and netting
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3.1
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Notwithstanding the provisions of section 5.3 of each Refinancing Agreement and section 2 of the Credit Agreement, the CIRR Mandatary agrees that the amount to be
advanced by way of each Refinancing Loan under each Refinancing Agreement, will be advanced to the Facility Agent as the Facility Agent for and on behalf of each Bank by no later than 12.00 p.m. (Frankfurt time) on the day it is advanced and the
parties to this Agreement agree that the loan as funded by the relevant Refinancing Agreement will be advanced by the Facility Agent to the Borrower in accordance with section 2 of the Credit Agreement.
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3.2
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The CIRR Mandatary and each Lender agree that the distribution by the Facility Agent to the Lenders of payments of interest on the Loan by the Borrower and payments of
interest on its Refinancing Loan by each Lender will be made on a net basis so that on each date for the payment of interest under the Credit Agreement the following payments will be made in discharge of the said payment obligations:
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3.2.1
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the Borrower will pay to the Facility Agent for the account of the Lenders an amount equal to the interest due on the outstanding Loan;
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3.2.2
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the Facility Agent will distribute to the Lenders according to their respective pro rata shares out of the payment received from the Borrower an amount equal to
the Applicable Margin plus Mandatary Costs (if any) then payable on the outstanding Loan minus the sum of the refinancing mark-up and the risk margin set out in sections 2.2.11, 7.6 of each Refinancing Agreement; and
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3.2.3
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the Facility Agent will pay to the CIRR Mandatary out of the payment received from the Borrower an amount equal to interest at the KfW Rate then payable on the
Refinancing Loans.
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3.3
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The Facility Agent agrees to pay to the CIRR Mandatary on behalf of each Lender all amounts received by the Facility Agent in respect of repayments of principal of the
Loan, on the due date for payment to the CIRR Mandatary of repayments of the Refinancing Loans under the Refinancing Agreements and the Lenders irrevocably authorize the Facility Agent to make such payments. The Facility Agent agrees to provide
notice to each Lender upon each payment to the CIRR Mandatary under this Clause 3.3. The Facility Agent agrees to provide notice to each Lender upon each payment to the CIRR Mandatary under this Clause 3.3.
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3.4
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The parties hereto agree that any disbursements under the Refinancing Agreements will be made directly from the CIRR Mandatary to the Facility Agent for the purpose of
disbursement to the Borrower, to the Yard or to Hermes, as applicable.
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3.5
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The Facility Agent agrees to pay to the CIRR Mandatary on behalf of each Lender all amounts received by the Facility Agent in respect of the Commitment Commission or
other fees according to sections 2.08, 2.09, 3, 4.04, 14.01 and 14.05 of the Credit Agreement and section 6.4 of the relevant Refinancing Agreement.
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The
CIRR Mandatary agrees that it shall only be entitled to call for additional security in respect of any Refinancing Loan pursuant to section 8 of the relevant Refinancing Agreement if the relevant Bank's long term issuer rating in foreign currencies
falls below A- (Standard & Poor's) or A3 (Moody's) or comparable rating of an internationally recognised rating agency. In the event that the CIRR Mandatary calls for additional security in such circumstances and appropriate security is not
provided then the CIRR Mandatary will have the right to exercise its rights to terminate such Refinancing Agreement pursuant to section 10.1 thereof.
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5.1
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No party may assign its rights under this Agreement other than together with an assignment of its rights under and in accordance with the Credit Agreement.
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5.2
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All Banks except for Deutsche Schiffsbank Aktiengesellschaft agree that KfW IPEX-Bank GmbH shall be released from the restrictions of § 181 BGB
(
Bürgerliches Gesetzbuch;
German Civil Code) in respect of this Agreement. In an event of conflict under § 181 BGB (
Bürgerliches Gesetzbuch;
German Civil Code) Deutsche Schiffsbank Aktiengesellschaft will give the
approval with regard to the relevant act or legal transaction (
Rechtsgeschäft
) of KfW IPEX-Bank GmbH subsequently (
nachträgliche Zustimmung, (Genehmigung)
§ 184 para. 1 BGB (
Bürgerliches Gesetzbuch;
German
Civil Code)).
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5.3
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The parties agree that clause 11 a) of each Refinancing Agreement will not apply to the Credit Agreement under which Breakaway One Ltd. is the Borrower.
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4
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5.4
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The parties agree that should at any time, any provisions of this Agreement be or become void (
nichtig
), invalid or due to any reason ineffective
(
unwirksam
) this will indisputably (
unwiderlegbar
) not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or ineffective provisions, without
any party having to argue (
darlegen
) and prove (
beweisen
) the parties' intent to uphold this Agreement even without the void, invalid or ineffective provisions.
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The void, invalid or ineffective provisions shall be deemed replaced by such valid and effective provisions that in legal and economic
terms comes closest to what the parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement.
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5.5
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No failure to exercise, nor any delay in exercising, on the part of any party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single
or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by
law.
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5.6
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Every notice, request, demand or other communication under this Agreement shall:
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5.6.1
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be in writing delivered personally or by first-class prepaid letter (airmail if available) or facsimile (confirmed in the case of facsimile by first-class prepaid
letter sent within twenty-four (24) hours of despatch of the facsimile but so that the non-receipt of such confirmation shall not affect in any way the validity of the facsimile in question);
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5.6.2
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be deemed to have been received, subject as otherwise provided in this Agreement, if delivered personally, when delivered or in the case of a first class prepaid
letter, five (5) Business Days after it has been put in the post, in the case of a facsimile at the time of despatch with electronic or other confirmation of receipt (provided that if the date of despatch is not a business day in the country of
the addressee, it shall be deemed to have been received at the opening of business on the next such business day) or if by electronic mail in accordance with Clause 8.6; and
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(1)
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if to be sent to the Facility Agent, at:
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KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Claudia Wenzel
and Christian Schweiger
Tel No: (49) 69 7431 2625 / 4037
Fax No: (49) 69 7431 2944
5
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(2)
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if to be sent to a Bank, to it at its address and facsimile number set forth in Appendix 2;
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(3)
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if to be sent to the CIRR Mandatary, at:
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KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Markus Kristen
and Anja Demisch
Tel No: (49) 69 7431 4687 / 3621,
Fax No: (49) 69 7431 2944
or to such other address and facsimile number as is notified by one party to the other parties under this Agreement by not less than five (5) Business Days' written notice.
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5.7.1
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communication to be made in connection with this Agreement may be made by electronic mail or other electronic means, if the relevant parties:
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(a)
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agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
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(b)
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notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
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(c)
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notify each other of any change to their address or any other such information supplied by them; and
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5.7.2
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electronic communication made between any parties hereunder will be effective only when actually received in readable form and acknowledged by the recipient (it
being understood that any system generated responses do not constitute an acknowledgement) and only if it is addressed in such a manner as the recipient shall specify for this purpose.
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5.8
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No Lender may assign its rights under this Agreement other than together with an assignment of its rights under and in accordance with the Credit Agreement.
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6
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Counterparts and governing law
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6.1
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This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument.
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6.2
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This Agreement and all claims arising in connection with it are governed by, and are to be construed in accordance with, the laws of the Federal Republic of Germany.
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6
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6.3
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The courts of Frankfurt am Main shall have jurisdiction in respect to all disputes out of or relating to this Agreement.
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IN WITNESS
of which the parties to this Agreement have executed this Agreement the day and year first before written.
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SIGNED
by
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)
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duly authorised for and on behalf of
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KFW IPEX-BANK GMBH
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(as the Facility Agent)
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)
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in the presence of:
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)
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SIGNED
by
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)
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duly authorised for and on behalf of
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)
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KfW IPEX-BANK GMBH
,
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)
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duly authorised for and on behalf of
KFW
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)
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(as the CIRR Mandatary)
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)
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in the presence of:
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)
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SIGNED
by
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)
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duly authorised for and on behalf of
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)
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DEUTSCHE SCHIFFSBANK
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)
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AKTIENGESELLSCHAFT
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)
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(as Lender)
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)
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in the presence of:
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)
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7
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SIGNED
by
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)
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duly authorised for and on behalf of
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)
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DnB NOR BANK ASA
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)
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(as Lender)
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in the presence of:
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)
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SIGNED
by
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)
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duly authorised for and on behalf of
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)
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HSBC BANK PLC
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)
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(as Lender)
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)
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in the presence of:
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)
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SIGNED
by
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)
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duly authorised for and on behalf of
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NORDEA BANK NORGE ASA
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)
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(as Lender)
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in the presence of:
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)
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8
Appendix 1
Forms of Refinancing Agreement
9
Appendix 2
The Banks
[*]
10
EXHIBIT D
FORM OF SECRETARY’S CERTIFICATE
OF
CREDIT PARTIES
[ ], 2010
The undersigned Secretary of each of the entities listed on
Schedule I
hereto (each, a “
Credit Party
”) does hereby certify the following to KfW IPEX-Bank GmbH (“
KfW
IPEX
”), as Facility Agent in connection with the Credit Agreement, dated as of [ ], 2010, among NCL Corporation Ltd.,
Breakaway Two, Ltd., as Borrower, the Lenders from time to time party thereto, KfW IPEX, as Facility Agent, as Collateral Agent under the Security Documents and as CIRR Agent, Nordea Bank Norge ASA, as Documentation Agent and Commerzbank
Aktiengesellschaft, as Hermes Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”). All capitalized terms used in this certificate shall have the meanings assigned to them in
the Credit Agreement, unless otherwise defined in this certificate.
1. Attached hereto as
Exhibit A
is a true and
complete copy of minutes or resolutions duly adopted by the board of directors (or equivalent) of each Credit Party authorizing, among other things, the execution, delivery and performance of the Credit Documents to which such Credit Party is a
party, and such minutes or resolutions (or equivalent) have not since their adoption been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and are in full force and effect on the date hereof.
2. Attached hereto as
Exhibit B
is a true, correct and complete copy of the certificate of incorporation and by-laws or
equivalent organizational documents of each Credit Party, each of which is as of the date hereof in full force and effect.
3.
The persons whose names appear on
Exhibit C
hereto are, as of the date hereof, duly elected or appointed, as applicable, qualified, and acting officers or directors of each Credit Party, holding the offices or directorships set forth beside
their names, and are authorized to execute and deliver the Credit Documents on behalf of such Credit Party, and the signature appearing next to each name is the genuine signature of such officer or director.
4. On the date hereof, the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true
and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof, both before and after giving effect to the incurrence of Loans on the date hereof and the application of the
proceeds thereof, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date.
5. On the date hereof, no Default or Event of Default has occurred and is continuing or would result from the Borrowing to occur on the
date hereof or from the application of the proceeds thereof.
6. There is no proceeding for the dissolution or liquidation of
any Credit Party or threatening any Credit Party’s existence.
IN WITNESS WHEREOF, each of the Credit Parties has caused this Secretary’s Certificate
to be executed and delivered by its duly authorized representative as of the date first set forth above.
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NCL CORPORATION LTD.
NCL INTERNATIONAL, LTD.
BREAKAWAY TWO, LTD.
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By:
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Name:
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Daniel S. Farkas
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Title:
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Secretary
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I, Kevin M. Sheehan, President and Chief Executive Officer of NCL Corporation Ltd., NCL
International, Ltd. and Breakaway Two, Ltd. hereby certify that Daniel S. Farkas is the duly elected or appointed, as applicable, and qualified Secretary of NCL Corporation Ltd., NCL International, Ltd. and Breakaway Two, Ltd. and that the signature
appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first set forth
above.
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Name:
Title:
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Kevin M. Sheehan
President
and Chief Executive Officer
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Schedule I
Credit Parties
NCL
Corporation Ltd.
NCL International, Ltd.
Breakaway Two, Ltd.
Exhibit A
Resolutions
Exhibit B
Organizational Documents
Exhibit C
Incumbency
NCL
Corporation Ltd.
NCL International, Ltd.
Breakaway Two, Ltd.
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Daniel S. Farkas
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Senior Vice President
General Counsel
Secretary
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Kevin M. Sheehan
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President
Chief Executive Officer
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EXHIBIT E
F
ORM
O
F
T
RANSFER
C
ERTIFICATE
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To:
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[ ] as Facility Agent and
[ ] as Hermes Agent
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From:
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[
The Existing Lender
] (the “
Existing Lender
”) and [
The New Lender
] (the “
New Lender
”)
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Dated:
Breakaway Two, Ltd. – €529,846,154 Credit Agreement
dated [ ] (the
“Credit Agreement”)
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1.
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We refer to the Credit Agreement and to the Intercreditor Agreement (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall take
effect as a Transfer Certificate for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
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2.
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We refer to Section 13.06 (
Procedure and Conditions for Transfer
) of the Credit Agreement:
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(a)
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The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule attached hereto in accordance with Section 13.06 (
Procedure and Conditions for Transfer
).
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(b)
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The proposed date of transfer is [ ].
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(c)
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The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule attached hereto.
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3.
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On the date of the transfer the New Lender becomes:
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(a)
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Party to the relevant Credit Documents (other than the Intercreditor Agreement and the Security Trust Deed) as a Lender; and
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(b)
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Party to the Intercreditor Agreement as an ECF Lender; and
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(c)
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Party to the Security Trust Deed as a Secured Creditor[.][; and]
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(d)
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[Party to the Interaction Agreement.]
1
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4.
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The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
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1
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Applicable to any New Lender that elects to become a Refinanced Bank.
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EXHIBIT E
2
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5.
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We refer to Clause 9.2 (
Change to the Lenders
) of the Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) of the Security Trust Deed
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(a)
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In consideration of the New Lender being accepted as an ECF Lender for the purposes of the Intercreditor Agreement (and as defined therein), the New Lender confirms
that, as from the date of transfer, it intends to be party to the Intercreditor Agreement as an ECF Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an ECF Lender and agrees that it
shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
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(b)
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In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the transfer, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
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6.
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We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the transfer becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
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7.
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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.
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8.
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This Agreement takes effect as a deed.
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9.
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This Agreement has been entered into on the date stated at the beginning of this Agreement.
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10.
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This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with English law.
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Note:
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The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It
is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
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EXHIBIT E
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Notice Office address, fax number and
attention details for notices and account details for payments
]
EXHIBIT E
SIGNATORIES
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[Existing Lender]
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Executed as a deed by
[name of Existing Lender]
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender]Executed as a deed by
[name of New Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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This Agreement is accepted as a Transfer
Certificate for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the transfer is confirmed as [ ].
EXHIBIT E
5
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of
receipt of notice of the transfer referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
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[Facility Agent]
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Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[Hermes Agent]
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Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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[Hermes Agent]
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[NCL Corporation
Ltd.]
2
[Signed as a deed by
[NCL Corporation Ltd.]
, a
company incorporated in Bermuda, by [
full name(s)
of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory, [is][are]
acting under the authority of the company.
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2
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To be signed by the Company only if the transfer is pursuant to section 13.01(a)(ii)
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EXHIBIT E
6
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[
Signature of Director
]
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Authorised [signatory] [signatories]]
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EXHIBIT F
SHARE CHARGE
relating to shares in
BREAKAWAY TWO, LTD.
Dated December 2010
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(1)
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NCL INTERNATIONAL, LTD.
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milner house
I8 parliament street
p.o. box hm 1561
hamilton hm fx
bermuda
telephone: (441) 295-4630
fax:
(441) 292-7880
website:
www.chw.com
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©
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copyright cox hallett wilkinson
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Share Charge
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DATE
December 2010
PARTIES
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(1)
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NCL INTERNATIONAL, LTD., a company organised and existing under the laws of Bermuda, having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12
(the “Chargor”); and
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(2)
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KFW IPEX-BANK GMBH, a company incorporated under the laws of Germany whose business address is at 5-9, 60325 Frankfurt am Main, Germany, as collateral agent for the
Secured Creditors (as defined below) (the “Collateral Agent”).
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INTRODUCTION
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(A)
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By a credit agreement dated 18 November 2010 (as may be modified, supplemented, novated or amended from time to time, the “Credit Agreement”) and made
between, among others, (i) the Borrower (as defined below), (ii) various parties defined therein as lenders (the “Lenders”) and (iii) the Collateral Agent, the Lenders agreed, among other things, to make available to the
Borrower, upon the terms and conditions set forth therein, a multi-draw term loan credit facility of up to €529,846,154 (the “Facility”).
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(B)
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By one or more Interest Rate Protection Agreements or Other Hedging Agreements (each as defined in the Credit Agreement) entered into from time to time and by, among
others, the Borrower and/or NCL Corporation Ltd. and one or more Lenders or any affiliate thereof, the financial institutions party to such agreements shall have provided interest rate, foreign exchange or other derivative arrangements to the
Borrower and/or NCL Corporation Ltd.
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(C)
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At the date of this Charge, 12,000 ordinary shares of the Borrower are legally and beneficially owned by the Chargor (the “Issued Shares”).
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- 1 -
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Share Charge
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(D)
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It is one of the conditions precedent to the Lenders advancing or continuing to advance the Facility, or any part thereof, to the Borrower under the Credit Agreement
that the Chargor enters into this Charge.
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DEFINITIONS
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(1)
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In this Charge, unless contrary to or inconsistent with the context:
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Borrower
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means Breakaway Two, Ltd., a company incorporated and existing under the laws of Bermuda;
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Dollar and US$
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means the lawful currency of the United States of America;
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Event of Default
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means any event specified as such in section 11 of the Credit Agreement;
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Lender Creditors
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means the Lenders and each Agent under the Credit Agreement;
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Lien
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means a charge, mortgage, hypothecation, title retention, pledge, lien, security interest or other encumbrance, whether fixed or floating and howsoever created or
arising;
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Other Creditors
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means any Lender or any affiliate thereof and their successors, transferees and assignees if any (even if such Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assignees, with which the Parent and/or the Borrower enters into any Interest Rate Protection Agreements or Other Hedging Agreements from
time to time;
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Secured Creditors
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means collectively (i) the Lender Creditors and (ii) the Other Creditors;
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Secured Obligations
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has the meaning ascribed thereto in the Credit Agreement;
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- 2 -
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Share Charge
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Security Assets
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has the meaning set out in clause 1(a);
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Security Period
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means the period commencing on the date of this Charge and ending on the date upon which the Collateral Agent has informed the Chargor that all the Secured Obligations have been
irrevocably discharged in full; and
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Shares
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means the Issued Shares and the Additional Shares (as defined in clause 1(a)(ii)).
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INTERPRETATION
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(2)
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In this Charge unless contrary to or inconsistent with the context:
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(a)
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capitalised terms used herein (and not otherwise defined herein) shall have the meaning ascribed thereto in the Credit Agreement;
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(b)
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words (including, without limitation, defined terms) importing:
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(i)
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the singular include the plural and vice versa; and
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(ii)
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any gender includes all genders;
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(c)
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a reference to a party or person includes a reference to that party or person and its successors, transferees, substitutes (including, but not limited to, any party or
person taking by novation), executors, administrators and assignees;
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(d)
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the word “person” includes an individual, any entity having separate legal personality under the laws governing its formation, partnerships and trusts
(whether or not having separate legal personality), companies, corporations, unincorporated organisations and any government, department or agency thereof;
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(e)
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a reference to any thing or any matter (including, but not limited to, the Secured Obligations, any other amount and the Security Assets) is a reference to the whole
and any part of it;
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- 3 -
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Share Charge
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(f)
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a reference to this Charge, or any other document includes any variation, novation or replacement of or supplement to any of them from time to time;
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(g)
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a reference to a clause or Schedule means a reference to a clause or Schedule of this Charge;
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(h)
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where any clause contains sub-clauses, paragraphs or sub-paragraphs, each sub-clause, paragraph and sub-paragraph however called may be read and construed separately
and independently of each other;
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(i)
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a reference (whether specific or general) to a statute or to any other legislation includes any code, ordinance or other law, and any regulation, rule or bye-law or
other instrument made under it, and all official directives (if any) and all amendments, consolidations, re-enactments or substitutions of any of them from time to time;
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(j)
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a reference to a document includes any deed, agreement in writing, or any certificate, notice, instrument or other document of any kind;
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(k)
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“writing” and related expressions includes all means of reproducing words in a tangible and permanently visible form;
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(l)
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any agreement, undertaking, acknowledgment, condition or other term that is made or given by the Chargor is deemed to be a covenant in favour of and for the benefit of
the Lender;
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(m)
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headings are inserted for guidance only and do not affect the interpretation of this Charge; and
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(n)
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an Event of Default is “subsisting” until it has been waived in writing by, or remedied to the satisfaction of, the Collateral Agent.
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OPERATIVE PROVISIONS
- 4 -
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Share Charge
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As a continuing security for the Secured Obligations, the Chargor, as legal and
beneficial owner, hereby:
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(a)
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charges and agrees to charge in favour of the Collateral Agent, all of its right, title and interest in and to the following property (collectively the “Security
Assets”) as a first fixed security for the Secured Obligations:
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(i)
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the Issued Shares and any interest it has in the entries on the books of any financial intermediary pertaining to such Issued Shares, and all cash, warrants, rights,
instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect or in exchange for any or all of such Issued Shares;
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(ii)
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all additional shares of, and all securities convertible into and warrants, options and other rights to purchase or otherwise acquire, stock, shares or other securities
of the Borrower acquired by it in any manner during the Security Period (which shares and securities shall be deemed to be part of the Shares) or any other rights and any interest in the entries on the books of any financial intermediary pertaining
to such additional shares (all such shares, securities, warrants, options, rights, certificates, instruments and interests collectively being “Additional Shares”) and all cash, warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Additional Shares;
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(iii)
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all dividends or interest paid or payable by the Company after the date of and during the continuance of an Event of Default on all or any of the Shares; and
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(iv)
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to the extent not covered by paragraphs (i) through (iii) above, all proceeds of any or all of the foregoing Security Assets. For the
purposes of this Charge, the term “proceeds” includes whatever is receivable or received when the Security
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- 5 -
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Share Charge
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Assets or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary; and
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(b)
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undertakes to deposit forthwith with the Collateral Agent, and in such manner as the Collateral Agent may direct the following:
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(i)
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all share certificates in respect of the Issued Shares;
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(ii)
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a duly executed undated share transfer form in respect of the Issued Shares in favour of the Collateral Agent or its nominee;
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(iii)
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an undertaking from the Company to register transfers of the Shares to the Collateral Agent or its nominee (in the form set out in Schedule 1); and
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(iv)
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an irrevocable proxy from the Chargor to the Collateral Agent entitling the Collateral Agent to vote in respect of the Shares and exercise all other rights, powers and
privileges and remedies to which a holder of shares would be entitled (in the form set out in Schedule 2); and
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(c)
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undertakes to deliver, or cause to be delivered, to the Collateral Agent promptly following the issue of any Additional Shares held by the Chargor at any time after the
date hereof, the items listed in clauses 1(b)(i) and (ii) in respect of all such Additional Shares,
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provided that, upon irrevocable payment in full in Dollars of the Secured Obligations, the Collateral Agent will, at the request and
expense of the Chargor, release to the Chargor all the rights, title and interest of the Collateral Agent in or to the Security Assets.
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2.
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Preservation of Security
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2.1
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The security constituted by this Charge shall be continuing and not satisfied by an intermediate payment or satisfaction of the whole or any part of
the Secured Obligations but shall secure the ultimate balance of the Secured Obligations. The security hereby given shall be in addition to any other Lien now or hereafter held by the Collateral Agent for all or any of the Secured
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- 6 -
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Share Charge
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Obligations, and the Collateral Agent’s rights under this Charge shall not be postponed, lessened or otherwise prejudicially affected or merged in any other such security.
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2.2
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The obligations of the Chargor hereunder and the security constituted by this Charge shall not be affected by any act, omission or circumstances which but for this
provision might operate to release or otherwise exonerate the Chargor from its obligations hereunder or affect such obligations including without limitation and whether or not known to either of the Chargor or the Collateral Agent:
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(a)
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any time or indulgence granted to any person including the Company, or the Chargor;
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(b)
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the variation, extension, compromise, renewal or release of, or refusal or neglect to perfect or enforce any terms of this Charge; and
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(c)
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any irregularity, invalidity or unenforceability of any obligations of the Chargor under this Charge or any present or future law or order of any government authority
(whether of right or in fact) purporting to reduce or otherwise affect any of such obligations under this Charge which shall be construed accordingly as if there were no such irregularity, unenforceability, invalidity, law or order provided that any
such construction shall not cause the Chargor to be in breach or contravention of any applicable law or order.
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2.3
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Where any discharge (whether in respect of this Charge or otherwise) is made in whole or in part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be repaid on bankruptcy, liquidation or otherwise without limitation, the security constituted by this Charge and the liability of the Chargor under this Charge shall continue as if there had been no such
discharge or arrangement.
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3.
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Warranties and Undertakings
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3.1
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The Chargor hereby warrants and represents to the Collateral Agent that:
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- 7 -
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Share Charge
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(a)
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it is the legal and registered owner of the Issued Shares and, if and when acquired, the Additional Shares and it has not transferred, assigned, charged or in any way
encumbered the whole or any part of the Security Assets;
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(b)
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the Issued Shares constitute all of the issued and outstanding shares in the share capital of the Company at the date of this Charge;
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(c)
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the Issued Shares have been duly authorised, validly issued and are fully paid and non-assessable;
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(d)
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neither the Chargor nor the Company has granted any options or other rights of any nature in respect of the Issued Shares, or any other shares in the share capital of
the Company to any third party;
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(e)
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it is authorised in every respect to make this Charge and its obligations hereunder constitutes its legal, valid and binding obligations enforceable against it in
accordance with its terms; and
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(f)
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this Charge, when duly registered, will create a valid security interest in the Security Assets securing the payment of the Secured Obligations and, following execution
of this Charge, all filings and other actions necessary or reasonably desirable to perfect such security interest will be duly made or taken.
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3.2
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The Chargor hereby undertakes to the Collateral Agent that during the Security Period:
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(a)
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it will remain the legal and registered owner of the Issued Shares and, if and when acquired, the Additional Shares and will not transfer, assign, charge or otherwise
encumber hereafter, the whole or any part of the Security Assets to anyone other than the Collateral Agent, unless with the prior written approval of the Collateral Agent, which approval may be arbitrarily withheld unless (i) such transfer does
not violate the terms of the Security Documents and (ii) any such transferee charges the Security Assets pursuant to an agreement which, in the opinion of the Collateral Agent, grants security to the Collateral Agent equivalent to this Charge;
and
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- 8 -
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Share Charge
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(b)
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it shall exercise its powers as a Chargor of the Company to procure that the Company will not issue new shares or classes of shares or register the transfer of shares
without the prior written approval of the Collateral Agent.
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3.3
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Upon the Collateral Agent being satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, and following a written
request therefor from the Chargor, the Collateral Agent will, subject to being indemnified to its reasonable satisfaction for the costs and expenses incurred by the Collateral Agent in connection therewith, release the security constituted by this
Charge and forthwith return to the Chargor any and all share certificates representing the Security Assets.
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The Chargor
hereby authorises the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default to arrange for the Security Assets to be registered (if required by the Collateral Agent to perfect or ensure the priority of
the Collateral Agent’s security therein) and (under the powers of realisation herein conferred) to transfer or cause the Security Assets to be transferred to and registered in the name of the Collateral Agent or in the name of any purchasers or
transferees from, or nominees of, the Collateral Agent and the Chargor undertakes from time to time to execute and sign all transfers, powers of attorney and other documents which the Collateral Agent may reasonably require for perfecting its title
to any of the Security Assets or for vesting the same in its title to any of the Security Assets or for vesting the same in it or in its nominees or in any purchasers or transferees of or from it.
The Collateral
Agent may on notice to the Chargor at any time after the occurrence and during the continuance of an Event of Default exercise at its discretion (in the name of any Chargor or otherwise) and without any further consent or authority on the part of
the Chargor in respect of any of the Security Assets, any voting rights and any powers or rights which may be exercised by
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the Collateral Agent or by the person or persons in whose name or names the Security Assets are registered or who is the holder thereof under the terms thereof or otherwise including, but without
limitation, all the powers given to trustees under the laws of Bermuda in respect of securities or property subject to a trust; provided that upon the taking of any such action the Collateral Agent will immediately give notice to the Chargor and
that in the absence of any such notice, the Chargor may and shall continue to exercise any and all rights with respect to the Security Assets, subject always to the terms hereof.
The
Collateral Agent hereby acknowledges that until an Event of Default shall have occurred and be continuing, the Chargor shall be entitled to (a) vote or cause to be voted any and all of the Security Assets and (b) give or cause to be given
consents, waivers and ratifications in respect thereof, provided, however, that no vote shall be cast or consent, waiver or ratification given or taken which would be inconsistent with any of the provisions of this Charge or would jeopardise the
exercise by the Collateral Agent of its rights under this Charge. All such rights of the Chargor to vote or cause to be voted and to give or cause to be given consents, waivers and ratifications shall cease automatically, where an Event of Default
occurs and is continuing.
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7.
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Enforcement of Security
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Upon, at any time after the occurrence of, and during the continuance of an Event of Default the Collateral Agent shall be entitled to put
into force and exercise immediately, without further notice to the Chargor (without prejudice to the notice of default under section 11 of the Credit Agreement), as and when it may see fit, any and every power possessed by it by virtue of this
Charge and, in particular (without prejudice to the generality of the foregoing):
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(a)
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may solely and exclusively exercise all voting and/or consensual powers pertaining to the Security Assets or any part thereof and may exercise such powers in such
manner as the Collateral Agent may think fit;
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(b)
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may remove the then existing directors and officers (with or without cause) by dating and presenting the undated, signed letters of resignation delivered pursuant to
this Charge;
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(c)
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may receive and retain all dividends, interest or other monies or assets accruing on or in respect of the Security Assets or any part thereof, such dividends, interest
or other monies or assets to be held by the Collateral Agent, until applied in the manner described in clause 7(g), as additional security charged under and subject to the terms of this Charge and any such dividends, interest or other monies or
assets received by the Chargor after such time shall be held in trust by the Chargor for the Collateral Agent and paid or transferred to the Collateral Agent on demand;
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(d)
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may sell, transfer, grant options over or otherwise dispose of the Security Assets or any part thereof at such place and in such manner and at such price or prices as
the Collateral Agent may deem fit subject to and in accordance with the prior authorisation and consent of the Bermuda Monetary Authority in so far as the sale, transfer, grant or option or disposal concern the Shares, and thereupon the Collateral
Agent shall have the right to deliver, assign and transfer in accordance therewith the Security Assets so sold, transferred, granted options over or otherwise disposed of;
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(e)
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the Collateral Agent shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Charge or to make any claim or to
take any action to collect any monies assigned by this Charge or to enforce any rights or benefits assigned to the Collateral Agent by this Charge or to which the Collateral Agent may at any time be entitled hereunder;
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(f)
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upon any sale of the Security Assets or any part thereof by the Collateral Agent the purchaser shall not be bound to see or enquire whether the
Collateral Agent’s power of sale has become exercisable in the manner provided in this Charge and the sale shall be deemed to be within the power of the Collateral Agent, and the receipt of the Collateral Agent for the purchase money shall
effectively discharge the purchaser who shall not be
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concerned with the manner of application of the proceeds of sale or be in any way answerable therefor provided that the purchaser purchases the Security Assets in an arm’s-length
transaction;
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(g)
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all monies received by the Collateral Agent pursuant to this Charge shall be held by it upon trust and shall be applied by it in accordance with section 4.05 of the
Credit Agreement;
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(h)
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neither the Collateral Agent nor its agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost
or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of gross negligence or dishonesty;
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(i)
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the Collateral Agent shall not by reason of the taking of possession of the whole or any part of the Security Assets or any part thereof be liable to account as
mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default of omission for which a mortgagee-in-possession might be liable; and
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(j)
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the powers provided in this Charge are cumulative with and not exclusive of powers provided by law or equity independently of this Charge.
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8.1
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In addition to the powers conferred in this Charge, at any time after the security hereby created shall become enforceable, the Collateral Agent may appoint in writing
a receiver or a receiver and manager (herein the “Receiver”) of all or any part of the Security Assets and may remove the Receiver so appointed and appoint another in his stead and may from time to time fix the remuneration of the
Receiver. The power to appoint a Receiver over all the Security Assets may be exercised whether or not a Receiver has already been appointed over part of it.
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8.2
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Subject to any specific limitations in the terms of appointment, a Receiver shall have the powers conferred on receivers by law or equity in addition
to all the Collateral Agent’s powers
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including, but not limited to, any one or more of the powers in clause 7 each of which is to be construed as if a reference to the Collateral Agent includes a reference to the Receiver.
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8.3
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Neither the Collateral Agent nor any of its agents, officers, employees, managers, delegates and advisers shall be responsible for misconduct or negligence on the part
of the Receiver.
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9.
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Procedure for Private Sale
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Without prejudice to the generality of clause 7, in the event that the Collateral Agent determines in its discretion to sell the Security
Assets in one or more private sales:
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(a)
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the Collateral Agent may sell the Security Assets or any part thereof in one or more parcels;
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(b)
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the Collateral Agent may sell for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral
Agent may deem commercially reasonable;
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(c)
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the Collateral Agent may in its discretion establish a reserve price for the Security Assets or any part thereof;
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(d)
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the Collateral Agent shall not be obligated to make any sale regardless of any offer to sell which the Collateral Agent may have made;
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(e)
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the Collateral Agent may postpone or cancel the sale, modify the terms and conditions of the sale, withdraw Security Assets from the sale at any time, including by
announcement at the time and place fixed for the sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned;
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(f)
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the Chargor unconditionally waives any claims against the Collateral Agent arising by reason of the fact that the price of which any Security Assets
may have been sold at such a private sale was less than the price which might have been attained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such
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Security Assets to more than one offeree provided that the purchaser purchases the Security Assets for value in an arms-length transaction; and
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(g)
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the Chargor unconditionally agrees that the Collateral Agent may acquire the Security Assets or sell them to an affiliate subject to and in accordance with the prior
authorisation and consent of the Bermuda Monetary Authority in so far as the sale, transfer, grant or option or disposal concern the Shares.
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10.1
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The Chargor will indemnify and save harmless the Collateral Agent and each agent or attorney appointed under or pursuant to this Charge from and against any and all
expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Collateral Agent or such agent or attorney (the “Liabilities”):
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(a)
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in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge;
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(b)
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in the preservation or enforcement of the Collateral Agent’s rights under this Charge or the priority thereof; or
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(c)
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on the release of any part of the Security Assets from the security created by this Charge,
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except where such Liabilities shall be found by a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Collateral Agent or such agent or attorney, and the Collateral Agent or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this Charge. All amounts
recoverable by the Collateral Agent or such agent or attorney or any of them shall be recoverable on a full indemnity basis.
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10.2
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If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or
liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made or falls to be satisfied in a
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currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Charge (the “Contractual Currency”) then to the extent
that the amount of such payment actually received by the Collateral Agent when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and
independent obligation, shall indemnify and hold harmless the Collateral Agent against the amount of such shortfall. For the purposes of this clause 10.2 “rate of exchange” means the rate at which the Collateral Agent is able on or about
the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium payable to third parties and other costs of exchange with respect thereto.
The Chargor
shall pay to the Collateral Agent on demand all costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Collateral Agent or for which the Collateral Agent may become liable in connection
with:
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(a)
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the negotiation, preparation and execution of this Charge;
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(b)
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the preserving or enforcing of, or attempting to preserve or enforce, any of the rights under this Charge or the priority hereof;
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(c)
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any variation of, or amendment or supplement to, any of the terms of this Charge; and/or
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(d)
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any consent or waiver required from the Collateral Agent in relation to this Charge, and in any case referred to in clauses 11(c) and 11(d) regardless of whether the
same is actually implemented, completed or granted, as the case may be.
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The
Chargor further agrees that at any time and from time to time, upon the written request of the Collateral Agent, it will promptly and duly execute and deliver any and all such further instruments and documents as the Collateral Agent acting
reasonably may deem necessary, desirable or appropriate for the purpose of obtaining the full benefit of this Charge and of the rights and powers herein granted.
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13.
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Protection of Purchaser
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No purchaser or other person dealing with the Collateral Agent or any Receiver or with its or his attorneys shall be concerned to enquire
(a) whether any power exercised or purported to be exercised by it, him or them has become exercisable, (b) whether any money remains due on the security hereby created, (c) as to the propriety and regularity of any of its, his or
their actions or (d) as to the application of any money paid to him, it or them. In the absence of
mala fides
on the part of such purchaser or other person, such dealings shall be deemed so far as regards the safety and protection of
such purchaser or other person to be within the powers hereby conferred and to be valid accordingly.
The
Collateral Agent may at its expense at any time employ agents, managers, employees, advisers, attorneys and others on such terms as it sees fit for any of the purposes set out herein.
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15.
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Liability of Collateral Agent
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The Collateral Agent and any Receiver shall not be liable for any losses arising in connection with the exercise or purported exercise of any of their rights, powers and discretions in good faith
hereunder.
Under no
circumstances shall the Collateral Agent be deemed to assume any responsibility for or obligation or duty, with respect to any part of all of the Security Assets or this Charge of any nature or kind or any matter or proceeding arising out of or
related thereto but the same shall be at the Chargor’s sole risk at all times. The Collateral Agent shall not be required to take any action of any kind to collect, preserve or protect its or any Chargor’s rights in the Security Assets or
against other parties thereto.
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17.1
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Any notice, certificate, consent, determination or other communication required or permitted to be given or made under this Charge will be in writing and will be
effectively given and made if (a) delivered personally, (b) sent by prepaid courier service or mail or (c) sent prepaid by fax or other similar means of electronic communication, in each case to the applicable address set out below:
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(i)
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if to the Chargor, to:
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NCL
International, Ltd.
Milner House
18 Parliament Street
Hamilton HM 12
Attention: Company Secretary
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(ii)
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if to the Collateral Agent, to:
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KfW IPEX-Bank GmbH
Palmengarten Str. 5-9
60325 Frankfurt am Main
Germany
Attention: X5a3 - Risk Management - Collateral
Fax: 49 69 7431 2944
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17.2
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Any such communication so given or made will be deemed to have been given or made and to have been received on the day of delivery if delivered, or on
the day of faxing or sending by other means of recorded electronic communication, provided that such day in either event is a
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business day and the communication is so delivered, faxed or sent prior to 11.00a.m. (New York time) on such day. Otherwise, such communication will be deemed to have been given and made and to
have been received on the next following business day. Any such communication sent by mail will be deemed to have been given and made and to have been received on the third business day following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended disruption of postal services. Any such communication given or made in any other manner will be deemed to have been given or made and to have been received only upon actual receipt.
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17.3
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Any party may from time to time change its address for notice in the same manner as set out above.
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This Charge
shall be binding upon the Chargor and its administrators, successors, transferees and permitted assignees, and enure to the benefit of the Collateral Agent’s executors, administrators, successors, transferees and permitted assignees.
This Charge
may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Charge.
This
Charge shall be governed by and construed in accordance with the laws of Bermuda.
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21.1
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The parties irrevocably agree that the courts of Bermuda are to have jurisdiction to settle any disputes which may arise out of or in connection with this Charge and
that accordingly any suit, action or proceeding arising out of or in connection with this Charge (in this clause referred to as “Proceedings”) may be brought in such courts.
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21.2
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Nothing contained in this clause shall limit the right of the Collateral Agent to take Proceedings against the Chargor in any other court of competent jurisdiction, nor
shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
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21.3
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The Chargor irrevocably waives (and irrevocably agrees not to raise) any objection which it may have now or subsequently to the laying of the venue of any Proceedings
in any such court as is referred to in this clause any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in any such court as is referred to in this
clause shall be conclusive and binding upon the Chargor and may be enforced in the courts of any other jurisdiction.
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IN WITNESS WHEREOF
the parties hereto have caused this Charge to be duly executed with the intent
that is shall constitute a deed under Bermuda law the day and year first above written.
ATTESTATIONS
Each attorney executing this Charge states that he or she has not notice of revocation or suspension of his or her power of attorney.
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Signed as a deed by
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)
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on behalf of
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)
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NCL INTERNATIONAL, LTD.
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)
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pursuant to a power of attorney
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)
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dated 12 November 2010
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)
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Attorney-in-fact
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Signed as a deed by
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)
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on behalf of
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)
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KFW IPEX-BANK GMBH
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)
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pursuant to a power of attorney
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)
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dated 10 December 2010
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)
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Attorney-in-fact
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Schedule 1
Form of Undertaking
We,
Breakaway Two, Ltd. (the “Company”), hereby irrevocably UNDERTAKE and COVENANT with the KfW IPEX-Bank GmbH (the “Transferee”) to register all transfers of Shares (as defined in the Charge (as defined below)) submitted to the
Company for registration by the Transferee on enforcement of the share charge dated December 2010 between NCL International, Ltd. and the Transferee (the “Charge”) as soon as practical following the submission of such duly completed
transfers accompanied by evidence of any required consent of the Bermuda Monetary Authority to such transfers.
This Undertaking is given
pursuant to clause 1(b)(iii) of the Charge.
EXECUTED AS A DEED
on this
day of December 2010.
Each attorney executing this Form of
Undertaking states that he or she has not notice of revocation or suspension of his or her power of attorney.
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Signed as a deed by
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)
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on behalf of
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)
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Breakaway Two, Ltd.
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)
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pursuant to a power of attorney
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)
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dated 12 November 2010
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)
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Attorney-in-fact
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Schedule 2
Form of Irrevocable Proxy
WHEREAS:
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(A)
|
NCL International, Ltd. (the “Chargor”) and the KfW IPEX-Bank GmbH (the “Collateral Agent”) have entered into a share charge (the
“Charge”) dated December 2010.
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(B)
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Pursuant to the Charge, the Chargor has granted a charge in favour of the Collateral Agent over all the shares in the capital of Breakaway Two, Ltd. (the
“Company”) from time to time registered in the name of the Chargor (the “Shares”).
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(C)
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In furtherance of clause 1(b)(iv) of the Charge, this proxy constitutes an irrevocable proxy and is granted with an interest, namely arising under the Charge.
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NOW THIS DEED witnesses as follows:
|
1.
|
The Chargor hereby constitutes and appoints the Collateral Agent, acting through its duly authorised officers, to be proxy to vote the Shares on its behalf at any
general meeting of the Company and any adjournments thereof and, on its behalf, to consent to short notice of any such meeting and execute any unanimous written resolution of the shareholders of the Company.
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2.
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The Chargor hereby declares that this proxy shall be irrevocable until such time as it has been released from its Secured Obligations (as defined in the Charge) and
that it constitutes a power coupled with an interest.
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IN WITNESS
whereof the Chargor has executed this irrevocable proxy
as a deed this day of December 2010.
Each attorney executing this
Form of Irrevocable Proxy states that he or she has not notice of revocation or suspension of his or her power of attorney.
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Signed as a deed by
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)
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on behalf of
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)
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NCL INTERNATIONAL, LTD.
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)
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pursuant to a power of attorney
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)
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dated 12 November 2010
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)
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Attorney-in-fact
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- 22 -
EXHIBIT G
FORM OF
ASSIGNMENT OF EARNINGS
[VESSEL]
IMO Number
[NUMBER]
THIS EARNINGS ASSIGNMENT (the “
Assignment
”), dated
[DATE]
, is given by
BREAKAWAY TWO, LTD.
a Bermuda company with its registered office at Milner House, 18 Parliament
Street, Hamilton HM12, Bermuda (the “
Assignor
”), in favor of KFW IPEX-BANK GMBH, as Collateral Agent (as defined below) under the Credit Agreement referred to below (the “
Assignee
”) on behalf of each Lender Creditor
(as defined below) and each other Secured Creditor (as defined below). Except as otherwise defined herein, capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as so defined.
RECITALS
A. The Assignor is the sole owner of the
[Bahamian]
1
flag vessel
[VESSEL]
, IMO Number
[NUMBER]
(the “
Vessel
”).
B. The Assignor, as borrower has entered into a Credit Agreement, dated as of
[
] (as the same may be amended, supplemented, novated or otherwise modified from time to time, the “
Credit
Agreement
”) with NCL Corporation Ltd., a Bermuda company (the “
Parent
”), the Lenders from time to time party thereto (which Lenders as of the date hereof are Deutsche Schiffsbank Aktiengesellschaft (an affiliate of
Commerzbank Aktiengesellschaft), DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Assignee, as facility agent (in such capacity, the “
Facility Agent
”), collateral agent under the Security
Documents (in such capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as documentation agent and the other parties from time to time party thereto, providing
for the making of Loans to the Assignor in the principal amount of up to the Dollar Equivalent of Five Hundred and Twenty-Nine Million Eight Hundred and Forty-Six Thousand One Hundred Fifty-Four Euros (€529,846,154) (the Lenders, the
Collateral Agent and the other Agents, collectively, the “
Lender Creditors
”).
C. The Assignor and/or the
Parent may at any time and from time to time enter into, and/or, in the case of the Parent, guarantee the obligations of the Assignor under, one or more Interest Rate Protection Agreements or Other Hedging Agreements with one or more Lenders or any
Affiliate thereof (each such Lender or Affiliate, even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender’s or Affiliate’s successors, transferees and assignees,
if any, collectively, the “
Other Creditors
” and, together with the Lender Creditors, the “
Secured Creditors
”).
D. It is a condition to the obligation of the Lenders to advancing funds to the Assignor under the Credit Agreement that the Assignor enters into this Assignment as security for (x) the Credit
Document Obligations and (y) the Other Obligations.
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1
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If Vessel is not flagged in the Bahamas, appropriate adjustments will be made to this document.
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Exhibit G
Page 2
NOW, THEREFORE, the parties hereto agree as follows:
The Assignor agrees to pay to the Secured Creditors all moneys owed to them and to perform all its Credit Document Obligations and Other
Obligations as and when the same shall be due for payment or performance.
Section 1
. As security for the Credit
Document Obligations and the Other Obligations, the Assignor, with full title guarantee, hereby grants, conveys, assigns, transfers, mortgages and pledges absolutely and unconditionally to the Assignee, and unto the Assignee’s successors,
transferees and assignees, all its right, title, interest, claim and demand in and to, and hereby also grants unto the Assignee a security interest in and to (the following clauses (i) through (v), collectively, the “
Earnings
Collateral
”) (i) the earnings of the Vessel, including, but not limited to, all freight, hire and passage moneys, proceeds of off-hire insurance, any other moneys earned and to be earned, due or to become due, or paid or payable to, or
for the account of, the Assignor, of whatsoever nature, arising out of or as a result of the ownership, use, operation or management by the Assignor or its agents of the Vessel, (ii) all moneys and claims for moneys due and to become due to the
Assignor under and all claims for damages arising out of the breach (or payments for variation or termination) of any charter, or contract relating to or under which is employed the Vessel, any and all other present and future charter parties,
contracts of affreightment, and operations of every kind whatsoever of the Vessel, and in and to any and all claims and causes of action for money, loss or damages that may now and hereafter accrue or belong to the Assignor, its successors,
transferees or assignees, arising out of or in any way connected with the present or future ownership, use, operation or management of the Vessel or arising out of or in any way connected with the Vessel, (iii) if the Vessel is employed on
terms whereby any money falling within clauses (i) or (ii) above are pooled or shared with any other Person, that proportion of the net receipts of the pooling or sharing arrangements which is attributable to the Vessel, (iv) all
moneys and claims for moneys due and to become due to the Assignor, and all claims for damages, in respect of the actual or constructive total loss of or requisition of use of or title to the Vessel, (v) all moneys and claims for moneys due in
respect of demurrage or detention, and (vi) any proceeds of any of the foregoing.
Section 2
. Anything herein
contained to the contrary notwithstanding, the Assignee, or its respective successors, transferees and assignees, shall have no obligation or liability under any agreement, including any charter or contract of affreightment by reason of or arising
out of this Assignment, or out of any Charter Assignment (as defined below) made pursuant to Section 5 hereof, and the Assignee, its respective successors, transferees and assignees, shall not be required or obligated in any manner to perform
or fulfill any obligations of the Assignor under or pursuant to any agreement, including any charter or contract of affreightment, or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received by the Assignee
or to present or file any claim, or to take any other action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled hereunder at any time or times.
Section 3
. The Assignor hereby constitutes the Assignee, its successors, transferees and assignees, its true and lawful
attorney-in-fact, irrevocably, with full power, in the name of the Assignor or otherwise, upon the occurrence and continuance of an Event of Default, to ask, require, demand, receive, compound and give acquittance for any and all moneys and claims
for moneys due and to become due, property and rights hereby assigned, to endorse any checks or other instruments or orders in connection therewith and to file any document or to take any action or institute any proceedings which the Assignee and
its successors, transferees and assignees may reasonably deem necessary or advisable in the premises.
Exhibit G
Page 3
Section 4
. The powers and authorities granted to the Assignee and its
successors, transferees or assignees herein have been given for valuable consideration and are hereby declared to be irrevocable.
Section 5
. The Assignor hereby agrees that at any time and from time to time, upon entering into any (a) charter or similar contract that has as of the execution date of such charter or
similar contract a remaining term of 13 months or greater (including any renewal option) and (b) demise or bareboat charter of the Vessel with another member of the NCLC Group, it will promptly and duly execute and deliver to and in favor of
the Assignee at the cost and expense of the Assignor a Charter Assignment in respect of such charter to the Assignee substantially in the form attached as Exhibit A hereto (the “
Charter Assignment
”) and it will promptly execute and
deliver any and all such further instruments and documents as the Assignee, and its successors, transferees or assignees, may reasonably require in order to obtain the full benefits of this Assignment, the Charter Assignment and of the rights and
powers herein and therein granted. The Assignor covenants to use commercially reasonable efforts to obtain the consent of the charterer under said charter to the Charter Assignment pursuant to the terms of the Charter Assignment or in other form and
substance reasonably satisfactory to the Assignee.
Section 6
. The Assignor warrants and represents that it has
not assigned or pledged or otherwise granted a security interest in the rights, title and interest assigned hereunder to anyone other than the Assignee. The Assignor hereby covenants that, without the prior written consent thereto of the Assignee,
so long as this Assignment shall remain in effect, other than in respect of Permitted Liens, it will not assign or pledge or otherwise grant a security interest in the whole or any part of the rights, title and interest hereby assigned to anyone
other than the Assignee, and it will not take or omit to take any action, the taking or omission of which might result in an alteration or impairment of this Assignment, or of any of the rights created by this Assignment.
Section 7
. The Assignor hereby appoints the Assignee as its attorney-in-fact to file any financing statements or continuation
statements under the Uniform Commercial Code or papers of similar purpose or effect in respect of this Assignment.
Section 8
. The Assignor agrees that at any time and from time to time, upon the written request of the Assignee, the Assignor
will promptly and duly execute and deliver any and all further instruments and documents as the Assignee may reasonably deem necessary in obtaining the full benefits of this Assignment.
Section 9
.
THIS ASSIGNMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY
ENGLISH LAW. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF ENGLAND, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO
PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING
Exhibit G
Page 4
WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE ASSIGNOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST
EXTENT POSSIBLE) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH ASSIGNOR IS A
PARTY BROUGHT IN THE COURTS REFERRED TO IN THIS SECTION 9 AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 10
. Any notice, demand or other communication to be given
under or for the purposes of this Assignment shall be made as provided in Section 14.03 of the Credit Agreement.
Section 11
. This Assignment may be executed in any number of counterparts each of which shall be an original, but all such
counterparts shall together constitute one and the same instrument.
Section 12
. Upon the satisfaction in full of
the due and owing Obligations and Other Obligations, the Assignee will reassign all rights and interest of every kind of the Assignor to, in or in connection with the Earnings Collateral in respect of the Vessel assigned to the Assignee hereunder.
Section 13
. This Assignment shall not be amended and/or varied except by agreement in writing signed by the
parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Exhibit G
Page 5
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this instrument on
the day and year first above written.
Signed as a deed and delivered on behalf of
BREAKAWAY TWO, LTD.
, a Bermuda
company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
Exhibit A to
Earnings Assignment
[Form of]
CHARTER ASSIGNMENT
No. ___
[VESSEL]
IMO Number
[NUMBER]
BREAKAWAY TWO, LTD.
, a Bermuda company (the “
Assignor
”), refers to an Assignment of Earnings, dated
[DATE]
(the “
Earnings Assignment
”), given by the
Assignor in favor of
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Assignee
”), under the Credit Agreement (as defined in the Earnings Assignment), wherein the Assignor agreed to enter into a Charter Assignment in the event
the Assignor entered into any (a) charter or similar contract that has as of the execution date of such charter or similar contract a remaining term of 13 months or greater (including any renewal option) and (b) demise or bareboat charter
of the Vessel with another member of the NCLC Group (as defined in the Credit Agreement).
The Assignor represents that it has
entered into a charter dated
[DATE OF TIME CHARTER PARTY]
between the Assignor and
[CHARTERER]
(the “
Charterer
”), a true and complete copy of which is attached hereto (the “
Charter
”), and agrees that
Section 1 of the Earnings Assignment is hereby amended to add to the description of collateral contained in said Section all of the Assignor’s right, title and interest in and to the Charter, all earnings and freights thereunder, and all
amounts due the Assignor thereunder, and the Assignor, with full title guarantee, does hereby grant, convey, assign, transfer, mortgage and pledge to the Assignee, and to the Assignee’s successors, transferees and assignees, all its right,
title, interest, claim and demand in and to, and hereby does also grant unto the Assignee, a security interest in and to, the Charter and all claims for damages arising out of the breach of and rights to terminate the Charter, and any proceeds of
any of the foregoing.
The Assignor hereby warrants that the Assignor will promptly give notice to the Charterer of the
Earnings Assignment as provided by Section 5 of the Earnings Assignment in the form attached hereto as Annex I and the Assignor will use commercially reasonable efforts to obtain the consent of the Charterer as evidenced by the execution by the
Charterer of the Charterer’s Consent and Agreement in the form attached hereto as Annex II.
The Assignor reconfirms that
the Earnings Assignment including all of the rights and liabilities, covenants and obligations therein remains in full force and effect.
Terms used herein and not otherwise defined herein are used as defined in, or by reference in, the Earnings Assignment.
The Assignor hereby agrees that so long as this Charter Assignment is in effect it will not terminate said Charter, or amend, modify, supplement, or waive any material term of said Charter in a manner
adverse to the Assignee, in each case without first obtaining the written consent of the Assignee therefor. The Assignor hereby agrees to notify the Assignee in writing of any arbitration.
No notice, request or demand under the Charter, shall be valid as against the Assignee unless and until a copy thereof is furnished to
the Assignee.
Exhibit A to
EARNINGS ASSIGNMENT
Page 2
THIS ASSIGNMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION
WITH IT ARE GOVERNED BY ENGLISH LAW. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF ENGLAND, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH
ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE ASSIGNOR HEREBY IRREVOCABLY
WAIVES (TO THE FULLEST EXTENT POSSIBLE) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH
SUCH ASSIGNOR IS A PARTY BROUGHT IN THE COURTS REFERRED TO IN THIS SECTION 9 AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT POSSIBLE) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Any notice, demand or other communication to be given under or for
the purposes of this Assignment shall be made as provided in the Earnings Assignment.
This Assignment may be executed in any
number of counterparts each of which shall be an original, but all such counterparts shall together constitute one and the same instrument.
Upon the satisfaction in full of the due and owing Obligations and Other Obligations (under and as defined in the Credit Agreement referenced in the Earnings Assignment), the Assignee will reassign all
rights and interest of every kind of the Assignor to, in or in connection with the Earnings Collateral in respect of the Vessel assigned to the Assignee hereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Charter Assignment No.
___ to be duly executed [and delivered as a deed] this ____ day of __________________.
Signed as a deed and delivered on
behalf of
BREAKAWAY TWO, LTD.
, a Bermuda company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
Annex I to
Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
NOTICE OF ASSIGNMENT OF CHARTER
No. ___
[VESSEL]
IMO Number
[NUMBER]
The undersigned,
BREAKAWAY TWO, LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, hereby gives you notice (this “
Notice
”) that by a Charter
Assignment dated
[DATE]
entered into by us in favor of KFW IPEX-BANK GMBH, as collateral agent (hereinafter called the “
Assignee
”), and an Earnings Assignment dated [DATE] (as the same may be amended, supplemented, novated or
otherwise modified from time to time), the Owner has assigned all its right, title, interest claim and demand in and to, the time charter-party [DATE OF TIME CHARTER PARTY] between the Owner and you (the “
Charter
”), including, but
not limited to, all earnings and freight thereunder, and all amounts due to the Owner thereunder, and further, the Owner has granted a security interest in and to the Charter and all claims for damages arising out of the breach of and rights to
terminate the Charter, and any proceeds of any of the foregoing.
The Owner remains liable to perform all its duties and
obligations under the Charter and the Assignee is under no obligation of any kind under the Charter nor under any liability whatsoever in the event of any failure by the Owner to perform its obligations.
Dated:
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BREAKAWAY TWO, LTD.,
as Owner
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By:
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Name:
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Title:
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Annex II to
Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
CHARTERER’S ACKNOWLEDGMENT, CONSENT AND AGREEMENT
No. __
[VESSEL]
IMO Number
[NUMBER]
The undersigned, charterer of the
[COUNTRY]
flag vessel
[VESSEL]
pursuant to a time charter-party dated
[DATE OF TIME CHARTER PARTY]
between BREAKAWAY TWO, LTD., as owner (the
“Assignor”) and the undersigned (the “
Charter
”), does hereby acknowledge receipt of a notice of the assignment by the Assignor of all the Assignor’s right, title and interest in and to the Charter to
KFW IPEX-BANK
GMBH
, as Collateral Agent (the “
Assignee
”), pursuant to a Charter Assignment dated
[DATE]
and an Earnings Assignment dated
[DATE]
(as the same may be amended, supplemented, novated or otherwise modified from time
to time, the “
Assignment
”), consents to such assignment, and agrees that, after being notified by the Assignee that an Event of Default (as defined in the Credit Agreement) exists and is continuing, it will pay all moneys due and to
become due under the Charter, without setoff or deduction for any claim not arising under the Charter, and notwithstanding the existence of a default or event of default by the Assignor under the Charter, direct to the Assignee or such account
specified by the Assignee at such address as the Assignee shall request the undersigned in writing until the Event of Default no longer exists.
The undersigned agrees that it shall look solely to the Assignor for performance of the Charter and that the Assignee shall have no obligation or liability under or pursuant to the Charter arising out of
the Assignment, nor shall the Assignee be required or obligated in any manner to perform or fulfill any obligations of the Assignor under or pursuant to the Charter. Notwithstanding the foregoing, if in the sole opinion of the Assignee an Event of
Default under the Credit Agreement (as defined in or by reference in the Assignment) shall have occurred and be continuing, the undersigned agrees that the Assignee shall have the right, but not the obligation, to perform all of the Assignor’s
obligations under the Charter as though named therein as owner.
The undersigned agrees that it shall not seek the recovery of
any payment actually made by it to the Assignee pursuant to this Charterer’s Consent and Agreement once such payment has been made. This provision shall not be construed to relieve the Assignor of any liability to the Charterer.
The undersigned hereby waives the right to assert against the Assignee, as assignee of the Assignor, any claim, defense, counterclaim or
setoff that it could assert against the Assignor under the Charter.
The undersigned agrees to execute and deliver, or cause
to be executed and delivered, upon the written request of the Assignee any and all such further instruments and documents as the Assignee may deem desirable for the purpose of obtaining the full benefits of the Assignment and of the rights and power
herein granted.
Annex II to
Exhibit A to
EARNINGS ASSIGNMENT
Page 2
The undersigned hereby agrees that so long as the Assignment is in effect it will not
amend, modify, supplement, or alter any material term of the Charter in a manner adverse to the Assignee, in each case without first obtaining the written consent of the Assignee therefor.
The undersigned hereby confirms that the Charter is a legal, valid and binding obligation, enforceable against it in accordance with its
terms, and that neither it nor, to the best of its knowledge, the Assignor is in default under its terms.
We also confirm
that we have received no notice of any previous assignment of, or other third party right affecting, all or any part of the Earnings and we undertake that, if required to do so in writing by the Assignee after the occurrence of an Event of Default,
we will immediately deliver up possession of the Vessel to or to the order of the Assignee (or, if the Vessel is not then in port and free of cargo, as soon as she has completed the voyage on which she is then engaged and discharged any cargo then
on board) free of the Charter but without prejudice to any rights which we may have against the Assignor under or pursuant to the Charter.
Dated: _______________
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[CHARTERER],
as
Charterer
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By:
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Name:
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Title:
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EXHIBIT H
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF
ASSIGNMENT OF INSURANCES
[VESSEL NAME]
IMO Number [
NUMBER
]
[DATE]
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Assignor
”), as sole
owner of the
[Bahamian]
1
flag vessel
[VESSEL
NAME]
, IMO Number
[NUMBER]
(the “
Vessel
”) in consideration of the Secured Creditors referred to below entering into the transactions described in the Credit Agreement (as defined below), as security for the Obligations
and for one Euro (€1) lawful money of the European Union, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, has assigned, transferred and set over, and by this instrument and with full
title guarantee does assign, transfer and set over absolutely and unconditionally to
KFW IPEX-BANK GMBH
, as Collateral Agent (as defined below) (hereinafter called the “
Assignee
”) on behalf of each Lender Creditor (as defined
below) and each other Secured Creditor (as defined below), and to the Assignee’s successors, transferees and assignees, as such to it and its successors’, transferees’ and assignees’ own proper use and benefit, and does hereby
grant to the Assignee a security interest in, all right, title and interest of the Assignor under, in and to (i) all insurances in respect of the Vessel, whether now or hereafter to be effected, and all renewals of or replacements for the same,
(ii) all claims, returns of premium and other moneys and claims for moneys due and to become due under said insurance or in respect of said insurance, and (iii) all other rights of the Assignor under or in respect of said insurance,
including proceeds (the above clauses (i), (ii) and (iii) collectively called the “
Insurance Collateral
”).
Terms used herein and not otherwise defined herein are used as defined in the Credit Agreement, dated as of
[
] (as the same may be amended, supplemented, novated or otherwise modified from time to time, the “
Credit
Agreement
”) among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), the Assignor, as borrower, the Lenders from time to time party thereto (which Lenders as of the date hereof are Deutsche Schiffsbank
Aktiengesellschaft (an affiliate of Commerzbank Aktiengesellschaft), DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Assignee, as facility agent (in such capacity, the “
Facility Agent
”), as
collateral agent under the Security Documents (in such capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as documentation agent and the other parties from
time to time party thereto, providing for the making of Loans to the Assignor in the principal amount of up to the Dollar Equivalent of Five Hundred and Twenty-Nine Million Eight Hundred and Forty-Six Thousand One Hundred and Fifty-Four Euros
(€529,846,154) (the Lenders, the Collateral Agent and the other Agents, collectively, the “
Lender Creditors
”).
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If Vessel is not flagged in the Bahamas, appropriate adjustments will be made to this document.
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Exhibit H
Page 2
The Assignor is a wholly-owned subsidiary of the Parent. The Parent and/or the Assignor
may at any time and from time to time enter into, and/or, in the case of Parent, guarantee the obligations of the Assignor under, one or more Interest Rate Protection Agreements or Other Hedging Agreements with one or more Lenders or any Affiliate
thereof (each such Lender or Affiliate, even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender’s or Affiliate’s successors, transferees and assignees, if any,
collectively, the “
Other Creditors
” and, together with the Lender Creditors, the “
Secured Creditors
”).
This Assignment of Insurances (the “
Assignment
”) is given as security for all amounts due and to become due to the Secured Creditors under the Credit Documents, Interest Rate Protection
Agreements and Other Hedging Agreements.
The Assignor agrees to pay to the Secured Creditors all moneys owed to them and to
perform all its Credit Document Obligations and Other Obligations as and when the same shall be due for payment or performance.
It is expressly agreed that anything herein contained to the contrary notwithstanding, the Assignor shall remain liable under said
insurances to perform all of the obligations assumed by it thereunder, and the Assignee shall have no obligation or liability under said insurances by reason of or arising out of this instrument of assignment nor shall the Assignee be required or
obligated in any manner to perform or fulfill any obligations of the Assignor under or pursuant to said insurances or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received by it or to present or file any
claim, or to take any other action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled hereunder at any time or times.
The Assignor does hereby constitute the Assignee, its successors, transferees and assignees, the Assignor’s true and lawful
attorney-in-fact, irrevocably, with full power (in the name of such Assignor or otherwise), upon the occurrence and continuance of an Event of Default or an Event of Loss to ask, require, demand, receive, compound and give acquittance for any and
all moneys and claims for moneys due and to become due under or arising out of said insurances, to endorse any checks or other instruments or orders in connection therewith and to file any claims or to take any action or institute any proceedings
which the Assignee may deem to be necessary or advisable in the premises.
The Assignor hereby covenants and agrees to procure
that notice of this Assignment shall be duly given to all underwriters, substantially in the form hereto attached as Exhibit A, and that where the consent of any underwriter is required pursuant to any of the insurances assigned hereby that it shall
use commercially reasonable efforts to obtain such consent and evidence thereof shall be given to the Assignee, or, in the alternative, that in the case of protection and indemnity coverage the Assignee shall use commercially reasonable efforts to
obtain a letter of undertaking by the underwriters, and that there shall be duly endorsed upon all slips, cover notes, policies, certificates of entry or other instruments issued or to be issued in connection with the insurances assigned hereby such
clauses as to loss payees as the Assignee may require or approve. In all cases, unless otherwise agreed in writing by the Assignee, such slips, cover notes, notices, certificates of entry or other instruments shall provide that there will be no
recourse against the Assignee for payment of premiums, calls or assessments.
Exhibit H
Page 3
The Assignor agrees that at any time and from time to time, upon the written request of
the Assignee, the Assignor will promptly and duly execute and deliver any and all such further instruments and documents as the Assignee may reasonably deem desirable in obtaining the full benefits of this Assignment and of the rights and powers
herein granted.
The Assignor does hereby warrant and represent that it has not assigned or pledged, and hereby covenants
that, without the prior written consent thereto of the Assignee, so long as this instrument of assignment shall remain in effect, other than in respect of Permitted Liens, it will not assign or pledge the whole or any part of the right, title and
interest hereby assigned to anyone other than the Assignee, its successors, transferees and assignees, and it will not take or omit to take any action, the taking or omission of which might result in an alteration or impairment of said insurances,
of this Assignment or of any of the rights created by said insurances or this Assignment.
All notices or other communications
which are required to be made to the Assignee hereunder shall be made by postage prepaid letter or telecopy confirmed by postage prepaid letter to:
KfW IPEX-Bank GmbH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax: +49 69 7431 4466 / 2944
Attn: Mr Stephan Pueschel /
Mr Christian Schweiger
or at such other address as may have been furnished in writing by the Assignee.
Any payments made pursuant to the terms hereof shall be made to such account as may, from time to time, be designated by the Assignee or as the Assignee may otherwise instruct.
THIS ASSIGNMENT AND THE NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY THE LAW OF ENGLAND. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE ENGLISH COURTS, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIM THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES
NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH ASSIGNOR. THE ASSIGNOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT
IS A PARTY BROUGHT IN THE COURTS REFERRED TO
Exhibit H
Page 4
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Assignment shall not be amended and/or varied except by
agreement in writing signed by the parties hereto.
This Assignment may be executed in any number of counterparts each of
which shall be an original, but such counterparts shall together constitute one and the same instrument.
[REMAINDER OF THIS
PAGE INTENTIONALLY LEFT BLANK]
Exhibit H
Page 5
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this instrument on
the day and year first above written.
Signed as a deed and delivered on behalf of
BREAKAWAY TWO, LTD.
, a Bermuda
company, as Assignor, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
Signed as a deed and delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized
under the laws of Germany, as Assignee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the bank
EXHIBIT A
to
Insurance Assignment
NOTICE OF ASSIGNMENT
The undersigned,
BREAKAWAY TWO, LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, hereby gives you notice (this “
Notice
”) that by an
Insurance Assignment dated
[DATE]
entered into by us in favor of KFW IPEX-BANK GMBH, as collateral agent (hereinafter called the “
Assignee
”), there has been assigned by us to the Assignee all insurances effected and to be
effected in respect thereof including the insurances constituted by the policy whereon this Notice is endorsed. This Notice and the applicable loss payable clauses in the form hereto attached as Annex I are to be endorsed on all policies and
certificates of entry evidencing such insurance.
Dated:
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BREAKAWAY TWO, LTD.,
as Owner
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By
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Name:
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Title:
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ANNEX I
to Notice of Insurance Assignment
FORM OF LOSS PAYABLE CLAUSES
Hull and War Risks
Loss, if any, payable to
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Mortgagee
”), for distribution by the Mortgagee to itself as Collateral Agent and to
BREAKAWAY TWO,
LTD.
, as owner (the “
Owner
”) of the Bahamian Vessel
[VESSEL NAME]
, as their respective interests may appear, or order, except that, unless underwriters have been otherwise instructed by notice in writing from the
Mortgagee following the occurrence and continuation of an Event of Default (as defined in the Credit Agreement, dated as of
[DATE]
, among the Owner, NCL Corporation Ltd., as parent, the Mortgagee, the lenders from time to time party thereto
and the other parties from time to time party thereto), in the case of any loss involving any damage to the Vessel or liability of the Vessel, the underwriters may pay directly for the repair, salvage, liability or other charges involved or, if the
Owner shall have first fully repaired the damage and paid the cost thereof, or discharged the liability or paid all of the salvage or other charges, then the underwriters may pay the Owner as reimbursements therefore;
provided
,
however
, that if such damage involves a loss in excess of [*] or its equivalent the underwriters shall not make such payment without first obtaining the written consent thereto of the Mortgagee.
In the event of an actual or constructive total loss or a compromise or arranged total loss or requisition of title, all insurance
payments therefor shall be paid to the Mortgagee, for distribution by it in accordance with the terms of the Deed of Covenants, dated as of
[DATE]
entered into by the Owner in favor of the Mortgagee.
Protection and Indemnity
Loss, if any, payable to
KFW IPEX-BANK GMBH
, as Collateral Agent (the “
Mortgagee
”), for distribution by the Mortgagee to itself as Collateral Agent and
BREAKAWAY TWO, LTD.
,
Owner, as their respective interests may appear, or order, except that, unless and until the underwriters have been otherwise instructed by notice in writing from the Mortgagee following the occurrence and continuation of a Default, an Event of
Default or an Event of Loss (in each case as defined in the Credit Agreement), any loss may be paid directly to the person to whom the liability covered by this insurance has been incurred, or to the Owner to reimburse it for any loss, damage or
expenses incurred by it and covered by this insurance.
EXHIBIT I
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF
DEED OF
COVENANTS
ON [BAHAMIAN]
1
FLAG VESSEL
[VESSEL]
OFFICIAL NO. [OFFICIAL NUMBER]
executed by
BREAKAWAY TWO, LTD.,
as Owner
in favor of
KFW IPEX-BANK GMBH,
as Collateral Agent and Mortgagee
[DATE]
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1
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If Vessel is not flagged in the Bahamas, appropriate changes will be made to this document.
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Table of Contents
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Page
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1.
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Definitions and Construction
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2
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2.
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Owner’s Covenant to Pay
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6
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3.
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Mortgage
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7
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4.
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Owner’s Covenants
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8
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5.
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Owner’s Covenants as to Insurance
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9
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6.
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Owner’s Covenants as to Operation and Maintenance
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13
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7.
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Expenses
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17
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8.
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Protection and Maintenance of Security
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17
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9.
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Enforcement of Rights
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18
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10.
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Application of Moneys
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19
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11.
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Receivers
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20
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12.
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No Waiver
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20
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13.
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Power of Delegation
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20
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14.
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Power of Attorney
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21
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15.
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Further Assurance
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21
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16.
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Assignment
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21
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17.
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Waiver of Rights as Surety
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21
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18.
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No Obligations Imposed on Mortgagee
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22
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19.
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Law of Property Act 1925 not applicable
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22
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20.
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No Liability of Mortgagee
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22
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21.
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No Requirement to Commence Proceedings
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23
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22.
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No Restriction on Other Rights
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23
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23.
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Exercise of Other Rights
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23
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24.
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Settlement or Discharge Conditional
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23
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25.
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Severability of Provisions
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23
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26.
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Notices
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23
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27.
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GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
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24
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(i)
EXHIBIT I
DEED OF COVENANTS
DEED OF COVENANTS (as amended, modified, restated
and/or supplemented from time to time, this “
Deed
”), dated as of [
], between BREAKAWAY TWO, LTD. a
Bermuda company having its registered office as of the date hereof at [
] (the “
Owner
”) and KFW IPEX-BANK
GMBH, as Collateral Agent and Security Trustee for and on behalf of the Secured Creditors pursuant to the Security Trust Deed (the “
Mortgagee
”, which expression shall include its successors, transferees and permitted assignees).
WHEREAS:
(A) The Owner is the absolute and unencumbered owner of all the shares of and in the motor vessel
“[
]” registered under the [Bahamian flag at the port of Nassau] with Official Number
[
].
(B) NCL Corporation Ltd., a Bermuda corporation (the “
Parent
”), the Owner, as borrower, each Lender from time to time party thereto (which Lenders as of the date hereof are Deutsche
Schiffsbank Aktiengesellschaft (an affiliate of Commerzbank Aktiengesellschaft), DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH, and Nordea Bank Norge ASA), the Mortgagee, as facility agent (in such capacity, the “
Facility
Agent
”), as collateral agent and security trustee under the Security Documents (in such capacity, the “
Collateral Agent
”) and as CIRR agent, Commerzbank Aktiengesellschaft, as Hermes agent, Nordea Bank Norge ASA, as
documentation agent and the other parties from time to time party thereto, have entered into a Credit Agreement, dated as of
[
], 2010, (as the same may be amended, supplemented, refinanced, replaced, novated or otherwise modified from time to
time, the “
Credit Agreement
”), providing for the making of Loans to the Owner in the principal amount of up to the Dollar Equivalent of Five Hundred Twenty-Nine Million Eight Hundred and Forty-Six Thousand One Hundred and Fifty-Four
Euros (€529,846,154) (the Lenders, the Collateral Agent and the other Agents, in their capacity as such, collectively, the “
Lender Creditors
”).
(C) The Parent and/or the Owner may at any time and from time to time enter into one or more Secured Hedging Agreements (as hereinafter defined) with one or more Other Creditors (as defined herein). The
estimated aggregate notional amount of the liabilities of the Parent and/or Owner under the Secured Hedging Agreements entered into with respect to the Loans (as defined in the Credit Agreement) (and/or the Commitments (as defined in the Credit
Agreement)) is a principal amount of up to the Dollar Equivalent of Fifty-Eight Million Two Hundred and Eighty-Three Thousand Seventy-Six Euro and Ninety-Four cents (€58,283,076.94).
(D) The Parent has guaranteed the Credit Document Obligations of the Owner under the Credit Agreement pursuant to Section 15 of the
Credit Agreement (the “
Parent Guarantee
”).
(E) There has contemporaneously with the execution of this Deed
been executed by the Owner in favor of the Mortgagee a first priority Bahamian statutory mortgage over all the shares in the said vessel (the “
Mortgage
”).
(F) It is intended that the Mortgage and this Deed shall together stand as security for the payment of the Secured Obligations (as defined below) and the performance and observance of and compliance with
the covenants, terms and conditions contained in any of the Secured Debt Documents (as hereinafter defined).
Exhibit I
Page 2
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED as follows:
1.
Definitions and Construction
.
Section 1.1 In this Deed unless the context otherwise requires any term defined in the preamble or recitals hereto has the meaning ascribed to it therein; in addition, terms and expressions not
defined herein but whose meanings are defined in the Credit Agreement shall unless the context otherwise requires have the meanings set out therein and:
“
Collateral
” means all property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Share Charge Collateral, all Earnings and Insurance Collateral, the Construction Risk Insurance, the Vessel, the Refund Guarantees, the Construction Contract and all cash and Cash Equivalents at any time delivered
as collateral thereunder or as collateral required under the Credit Agreement.
“
Compulsory Acquisition
”
means requisition for title or other compulsory acquisition of the Vessel including its capture, seizure, confiscation or expropriation but excluding any requisition for hire.
“
Compulsory Acquisition Compensation
” means all moneys or other compensation whatsoever payable by reason of the Compulsory Acquisition of the Vessel other than by requisition for hire.
“
Credit Agreement
” has the meaning provided in the Recitals hereto.
“
Credit Document Obligations
” means, except to the extent consisting of obligations, liabilities or indebtedness with
respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest, fees and indemnities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of the Owner or any other Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding)) of each Credit Party to the Lender Creditors
(
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned obligations, liabilities and indebtedness shall arise only for such Lenders (in such capacity) in respect of Loans and/or Commitments), whether now existing
or hereafter incurred under, arising out of, or in connection with the Credit Agreement and the other Credit Documents to which such Credit Party is a party (including, in the case of each Credit Party that is a Guarantor, all such obligations,
liabilities and indebtedness of such Credit Party under the Parent Guarantee) and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained in the Credit Documents.
“
Credit Party
” means the Owner, the Parent and each Subsidiary of the Parent that owns a direct interest in the Owner.
Exhibit I
Page 3
“
Default Rate
” means the rate of interest set out in Section 2.06
of the Credit Agreement.
“
Document of Compliance
” means a document issued to a vessel operator as evidence
of its compliance with the requirements of the ISM Code.
“
Earnings
” means (i) the earnings of the
Vessel, including, but not limited to, all freight, hire and passage moneys, proceeds of off-hire insurance, any other moneys earned and to be earned, due or to become due, or paid or payable to, or for the account of, the Owner, of whatsoever
nature, arising out of or as a result of the ownership, use, operation or management by the Owner or its agents of the Vessel, (ii) all moneys and claims for moneys due and to become due to the Owner under and all claims for damages arising out
of the breach (or payments for variation or termination) of any charter, or contract relating to or under which is employed the Vessel, any and all other present and future charter parties, contracts of affreightment, and operations of every kind
whatsoever of the Vessel, and in and to any and all claims and causes of action for money, loss or damages that may now and hereafter accrue or belong to the Owner, its successors, transferees or assignees, arising out of or in any way connected
with the present or future ownership, use, operation or management of the Vessel or arising out of or in any way connected with the Vessel, (iii) if the Vessel is employed on terms whereby any money falling within clauses (i) or
(ii) above are pooled or shared with any other Person, that proportion of the net receipts of the pooling or sharing arrangements which is attributable to the Vessel, (iv) all moneys and claims for moneys due and to become due to the
Owner, and all claims for damages, in respect of the actual or constructive total loss of or requisition of use of or title to the Vessel, (v) all moneys and claims for moneys due in respect of demurrage or detention, and (vi) any proceeds
of any of the foregoing.
“
Event of Default
” means an “Event of Default’ under and as defined in
the Credit Agreement.
“
Insurances
” means all policies and contracts of insurance and entries of the Vessel
in a protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include
all Compulsory Acquisition Compensation.
“
Interest Rate Protection Agreement
” means any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Lead Arranger or its
Affiliate, and the Parent and/or the Owner in relation to the Credit Document Obligations of the Owner under the Credit Agreement.
“
ISM Code
” means in relation to its application to the Owner and the Vessel and its operation:
(a) ‘The International Management Code for the Safe Operation of Ships and for Pollution Prevention’, currently known or referred to as the ‘ISM Code’, adopted by the Assembly of the
International Maritime Organization by Resolution A.741(18) on 4 November 1993 and incorporated on 19 May 1994 into Chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and
Exhibit I
Page 4
(b) all further applicable resolutions, circulars, codes, guidelines,
regulations and recommendations which are now or in the future issued by or on behalf of the International Maritime Organization or any other entity with responsibility for implementing the ISM Code, including without limitation, the
‘Guidelines on implementation or administering of the International Safety Management (ISM) Code by Administrations’ produced by the International Maritime Organization pursuant to Resolution A.788(19) adopted on 25 November 1995,
as the same may be amended, supplemented or replaced from time to time.
“
ISM Responsible Person
” means the person from time to time so designated by the Owner for the purposes of the ISM Code.
“
ISM SMS
” means the safety management system which is required to be developed, implemented and maintained
under the ISM Code.
“
ISPS Code
” means the International Ship and Port Facility Security Code constituted
pursuant to resolution A.924(22) of the International Maritime Organisation (“
IMO
”) adopted by a Diplomatic conference of the IMO on Maritime Security on 13 December 2002 and now set out in Chapter XI-2 of the Safety of Life at
Sea Convention (SOLAS) 1974 (as amended) to take effect on July 1, 2004.
“
ISSC
” means an international
ship security certificate issued for a vessel under the ISPS Code.
“
Lender Creditors
” has the meaning
provided in the Recitals hereto.
“
Mortgage
” has the meaning provided in the Recitals hereto.
“
Mortgaged Premises
” includes:
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(b)
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the Compulsory Acquisition Compensation.
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“
person
” includes any body of persons.
“
Other
Creditors
” means any Lender or any Affiliate thereof and their successors, transferees and assignees if any (even if such Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s
or Affiliate’s successors, transferees and assignees, with which the Parent and/or the Owner enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Other Hedging Agreement
” means any foreign exchange contracts, currency swap agreements, commodity agreements or other
similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliates, and the Parent and/or the Owner in relation to the Credit Document Obligations of the Owner under the Credit Agreement and
designed to protect against the fluctuations in currency or commodity values.
Exhibit I
Page 5
“
Process Agent
” means EC3 Services Limited of 51 Eastcheap, London,
England, EC3M 1JP.
“
Receiver
” means any administrative receiver, a receiver and manager of any other
receiver (whether appointed pursuant to this Deed, pursuant to any statute, by a court or otherwise) of all or any part of the Vessel.
“
Safety Management Certificate
” means a document issued to a vessel as evidence that the vessel operator and its shipboard management operate in accordance with an approved Safety
Management System.
“
Safety Management System
” means a structured and documented system enabling the
personnel of a vessel operator to implement effectively the safety and environmental protection policy of such vessel operator.
“
Secured Creditors
” means, collectively, (i) the Lender Creditors and (ii) the Other Creditors.
“
Secured Debt Document
” means the Credit Agreement and the other Credit Documents (as defined in the Credit Agreement).
“
Secured Hedging Agreements
” means (i) any Interest Rate Protection Agreement and (ii) any Other
Hedging Agreements.
“
Secured Obligations
” means (i) the Credit Document Obligations, (ii) the
Other Obligations, (iii) any and all sums advanced by the Collateral Agent in order to preserve the Collateral or preserve its security interest in the Collateral, (iv) in the event of any proceeding for the collection or enforcement of
any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after an Event of Default shall have occurred and be continuing, the reasonable expenses of retaking, holding, preparing for sale
or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs, and (v) all amounts paid by any
Secured Creditor as to which such Secured Creditor has the right to reimbursement under the Security Documents.
“
Security Period
” means the period beginning on the date hereof and ending on the date on which all amounts outstanding
under the Secured Debt Documents are finally paid and repaid in full, all letters of credit issued thereunder are terminated and all commitments thereunder are terminated.
“
Security Trust Deed
” means the Security Trust Deed executed by,
inter
alia
, the Owner, the Parent, the Collateral Agent, the Original Secured Creditors (as defined
therein) and the Original ECF Hedging Creditors (as defined therein), and shall be substantially in the form of Exhibit P or otherwise reasonably acceptable to the Facility Agent.
“
Total Loss
” means any actual or constructive or arranged or agreed or compromised total loss or Compulsory Acquisition
of the Vessel (excluding any requisition for hire).
“
Vessel
” means the motor vessel more particularly
described in Recital (A) and includes any share or interest therein and its engines, machinery, boats, tackle, outfit, spare gear, fuel, consumable or other stores, belongings and appurtenances whether on board or ashore and whether now owned
or hereafter acquired.
Exhibit I
Page 6
Section 1.2 In
Section 5.1
:
“
excess risks
” means the proportion of claims for general average and salvage charges and under the ordinary running
down clause not recoverable in consequence of the value at which a vessel is assessed for the purpose of such claims exceeding its insured value;
“
protection and indemnity risks
” means the usual risks covered by an English protection and indemnity association including without limitation pollution risks (whether relating to oil or
otherwise howsoever) and the proportion not recoverable in case of collision under the ordinary running down clause; and
“
war risks
” includes the risks of mines and all risks excluded from the standard form of English marine policy by the
free of capture and seizure clause.
Section 1.3 In the Mortgage, (i) references to “
interest
” mean
interest covenanted to be paid in accordance with
Sections 2.1
,
7
,
8
and
9
; (ii) references to “
principal
” mean all other sums of money for the time being comprised in the Secured Obligations;
and (iii) the expression “
all sums for the time being due on this security
” means the whole of the Secured Obligations.
Section 1.4
In this Deed
:
1.4.1 words denoting the plural number
include the singular and vice versa;
1.4.2 references to Recitals and Sections are references to recitals and sections of
this Deed;
1.4.3 references to this Deed include the Recitals;
1.4.4 the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored
in the interpretation of this Deed;
1.4.5 references to any document (including, without limitation, to all or any of the
Secured Debt Documents) are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
1.4.6 references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re- enacted.
2.
Owner’s Covenant to Pay
.
Section 2.1 Pursuant to the Secured Debt Documents and in consideration of the premises, the Owner covenants with the Mortgagee:
2.1.1 to satisfy the Secured Obligations at the times and in the manner specified in the relevant Secured Debt Documents;
Exhibit I
Page 7
2.1.2 to pay interest on the Secured Obligations at the rate, at the times and in the
manner specified in the Secured Debt Documents, as applicable;
2.1.3 to pay interest at the Default Rate on any sum or sums
payable under this Deed which is not paid on the due date;
2.1.4 to pay each and every other sum of money that may be or
become owing to the Secured Creditors under the terms of the Secured Debt Documents or any of them at the times and in the manner specified therein; and
2.1.5 to pay and discharge when due and payable, from time to time, all taxes, assessments, governmental charges, fines and penalties lawfully imposed on the Vessel or any income therefrom.
Section 2.2 The holder of the relevant Secured Obligations and the Owner may agree in writing to vary the date or dates for
repayment of principal or interest in respect of such Secured Obligations and/or vary the terms of the relevant Secured Debt Documents without reference to the Owner and without adversely affecting or diminishing the security conferred by the
Secured Debt Documents executed by the Owner.
3.
Mortgage
.
Section 3.1 By way of security for the payment of the Secured Obligations and the performance and observance of and compliance with
the covenants, terms and conditions contained in any of the Secured Debt Documents, the Owner with full title guarantee hereby mortgages and charges to and in favor of the Mortgagee all its interest, present and future, in the Mortgaged Premises
(which, the Owner hereby warrants to be free at the date hereof from any other charge or encumbrance whatsoever).
Section 3.2 It is declared and agreed that this Deed and the Mortgage shall be held by the Mortgagee as a continuing security for
the payment of the Secured Obligations and that the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the amount hereby and thereby secured and that the security so created shall be in addition to
and shall not in any way be prejudiced or affected by any collateral or other security now or hereafter held by the Mortgagee and/or the Secured Creditors for all or any part of the moneys hereby and thereby secured and that every power and remedy
given to the Mortgagee hereunder shall be an addition to and not a limitation of any and every other power or remedy vested in the Mortgagee and/or the Secured Creditors under any of the other Secured Debt Documents and that all the powers so vested
in the Mortgagee and/or the Secured Creditors may be exercised from time to time and as often as the Secured Creditors may deem expedient.
Section 3.3 The Owner will cause the Mortgage to be duly registered in the New York office of the Bahamas Maritime Authority and will otherwise comply with and satisfy all of the provisions of
applicable laws of the Commonwealth of the Bahamas in order to establish and maintain the Mortgage as a first priority mortgage thereunder upon the Vessel and upon all renewals, replacements and improvements made in or to the same for the amount of
the indebtedness hereby secured.
Exhibit I
Page 8
4.
Owner’s Covenants
.
Section 4.1 The Owner covenants and agrees with the Mortgagee as follows:
4.1.1 it is and will remain a company duly constituted, validly existing and in good standing under the laws of Bermuda;
4.1.2 it lawfully owns and is lawfully possessed of all the shares in the Vessel free from any lien or encumbrance whatsoever except for
this Deed, the Mortgage and any Permitted Lien and will warrant and defend the title and possession thereto and to every part thereof for the benefit of the Mortgagee against the claims and demands of all other persons whomsoever;
4.1.3 it will perform, observe and comply with the covenants, terms and obligations and conditions on its part to be performed, observed
and complied with contained or implied in the Secured Debt Documents;
4.1.4 it will place, and at all times and places will
retain a properly certified copy of this Deed and the Mortgage on board the Vessel with her papers and will cause such certified copy and the Vessel’s marine document to be exhibited to any and all person having business therewith which might
give rise to any lien thereon other than liens for crew’s wages and salvage, and to any representative of the Mortgagee;
The Owner will place and keep prominently displayed in the chart room and in the Master’s cabin on the Vessel a framed printed
notice in plain type reading as follows:
NOTICE OF MORTGAGE
THIS VESSEL IS OWNED BY BREAKAWAY TWO, LTD., AND IS SUBJECT TO A FIRST PRIORITY MORTGAGE IN FAVOR OF KFW IPEX-BANK GMBH, AS COLLATERAL
AGENT/MORTGAGEE UNDER AUTHORITY OF THE MERCHANT SHIPPING ACT OF THE STATUTE LAWS OF THE BAHAMAS, CHAPTER 268, AS AMENDED. UNDER THE TERMS OF SAID MORTGAGE, NEITHER THE OWNER, ANY CHARTERER, THE MASTER OF THE VESSEL, NOR ANY OTHER PERSON HAS ANY
RIGHT, POWER OR AUTHORITY TO CREATE, INCUR OR PERMIT TO BE PLACED OR IMPOSED UPON THE VESSEL, ANY ENCUMBRANCES WHATSOEVER OR ANY OTHER LIEN WHATSOEVER OTHER THAN FOR CREW’S WAGES AND SALVAGE.
4.1.5 it will do and permit to be done each and every act or thing whatsoever which the Mortgagee may require to be done for the purpose
of enforcing the Mortgagee’s rights hereunder and allow the Mortgagee to use the Owner’s name as may be required for that purpose.
4.1.6 it will not create or permit to subsist any Lien on the whole or any part of the Vessel except for Liens created with the prior consent of the Mortgagee or Permitted Liens; and
4.1.7 if a libel, arrest, complaint or similar process be filed against the Vessel or the Vessel be otherwise attached, levied upon or
taken into custody or detained by virtue of any proceeding in any court or tribunal or by any Government, or other authority, the Owner will
Exhibit I
Page 9
promptly notify the Mortgagee thereof by telex, or telefax confirmed by letter, at the address, as specified in this Deed, and within [*] days will cause the Vessel to be released and all liens
thereon other than the Mortgage to be discharged, will cause a certificate of discharge to be recorded in the case of any recording of a notice of claim of lien, and will promptly notify the Mortgagee thereof in the manner aforesaid. The Owner will
notify the Mortgagee within [*] hours of any average or salvage incurred by the Vessel.
5.
Owner’s Covenants as to
Insurance
.
Section 5.1 The Owner covenants with the Mortgagee and undertakes throughout the Security Period:
5.1.1 to insure the Vessel, or procure that the Vessel is insured, in its name and keep the Vessel and procure that the
Vessel is kept insured on an agreed value basis for an amount in Dollars approved by the Mortgagee,
provided
that at all times:
(a) the insured value of the Vessel shall at all times be equal to or greater than its fair market value,
(b) the insured value of the Vessel shall be equal to or greater than [*] of the then applicable Total Commitment,
(c) the hull and machinery insurance for the Vessel shall at all times be equal to no less than [*] of the total insured value of such Vessel and [*] of the total insured value of the Vessel shall consist
of hull interest and freight interest insurance;
through internationally recognized independent first class insurance
companies, underwriters, war risks and protection and indemnity associations reasonably acceptable to the Mortgagee in each instance on terms and conditions approved by the Mortgagee (with such approval not to be unreasonably withheld) including as
to deductibles but at least in respect of:
(a) marine risks including all risks customarily and usually
covered by first-class and prudent shipowners in the London insurance markets under English marine policies, or the Norwegian Plan or Mortgagee-approved policies containing the ordinary conditions applicable to similar vessels;
(b) war risks including the Missing Vessel Clause, terrorism, piracy and confiscation and, should institute War and Strike
Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(c) excess risks that is to say the proportion of claims for general average and salvage charges and under the running
down clause not recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
(d) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the
Exhibit I
Page 10
Mortgagee and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period;
(e) when and while the Vessel is laid-up,
in
lieu
of hull insurance, normal port risks;
(f) such other risks as the Mortgagee may from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in
respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Owner or the Mortgagee) such person shall if so required by the Mortgagee execute a first priority
assignment a of its interest in such insurances in favor of the Mortgagee in similar terms mutatis mutandis to the relevant Assignment of Insurances;
5.1.2 the Mortgagee at the cost of the Owner or the Parent shall take out, in each case, for an amount in Dollars approved by the Mortgagee but not being, collectively, less than [*] of the sum of the
then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Mortgagee may reasonably require, the Parent and the Owner having no interest or entitlement in respect of such
policies; the Mortgagee undertakes to use its reasonable endeavors to match the premium level that the Owner or the Parent would have paid if they had arranged such cover on such conditions (as demonstrated to the reasonable satisfaction of the
Mortgagee);
5.1.3 if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United
States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Owner shall comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in
any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of the Mortgage and in particular before such trade is commenced and during the entire period during which such trade is carried on the Owner
shall:
(a) pay any additional premiums required to maintain protection and indemnity cover for oil pollution
up to the limit available to it for the Vessel in the market;
(b) make all such quarterly or other voyage
declarations as may from time to time be required by the Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Mortgagee copies of such declarations;
(c) submit the Vessel to such additional periodic, classification, structural or other surveys which may be
required by the Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Mortgagee copies of reports made in respect of such surveys;
Exhibit I
Page 11
(d) implement any recommendations contained in the reports issued
following the surveys referred to in sub-clause (c) above within the time limit specified therein and provide evidence satisfactory to the Mortgagee that the protection and indemnity insurers are satisfied that this has been done;
(e) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Owner or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the Mortgagee on demand
with such information or evidence as it may reasonably require of such compliance;
(f) procure that the
protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Mortgagee with evidence that this is so; and
(g) strictly comply with any operational or structural regulations issued from time to time by any relevant
authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution;
5.1.4 to give notice forthwith of any assignment of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form reasonably approved by the
Mortgagee;
5.1.5 to execute and deliver all such documents and do all such things as may be necessary to confer upon the
Mortgagee legal title to the Insurances in respect of the Vessel and to procure that the interest of the Mortgagee is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable
clause in the form reasonably approved by the Mortgagee and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form reasonably
approved by the Mortgagee and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel;
5.1.6 at the Owner’s expense the Owner will cause such insurance brokers and the P & I club or association providing P & I insurance to agree to advise the Mortgagee by telex or telecopier
confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act or omission on the part of the Owner of which it has knowledge and which might invalidate or
render unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such unpaid premium or call, such right being exercisable by the Mortgagee on a vessel by vessel and not on a fleet basis. In
addition, the Owner or the Parent shall promptly provide the Mortgagee with any information which the Mortgagee reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the
adequacy of the insurances effected or proposed to be effected in accordance with the provisions contained herein as of the date hereof or in connection with any renewal thereof, and the Owner or the Parent shall upon demand indemnify the Mortgagee
in respect of all reasonable fees and other expenses incurred by or for the account of the Mortgagee in connection with any such report;
provided
the Mortgagee shall be entitled to such indemnity only for one such report during any period of
[*] months;
Exhibit I
Page 12
5.1.7 to procure that each of the relevant brokers and associations furnish the
Mortgagee with a letter of undertaking in such usual form as may be reasonably required by the Mortgagee and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel;
5.1.8 to punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce
all relevant receipts when so required by the Mortgagee;
5.1.9 to renew each of the Insurances on the Vessel at least [*]
Business Days before the expiry thereof and give immediate notice to the Mortgagee of such renewal and procure that the relevant brokers or associations shall promptly confirm in writing to the Mortgagee that such renewal is effected, it being
understood by the Owner that any failure to renew the Insurances on the Vessel at least [*] Business Days before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default;
5.1.10 to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war
risks association;
5.1.11 to furnish to the Mortgagee from time to time on request with full information about all Insurances
maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed;
5.1.12 not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Mortgagee (which approval shall not be unreasonably withheld) (save in
circumstances where the variation is imposed by the insurers or reinsurers without requiring the Owner’s consent in which case the Owner shall notify the Mortgagee of such variation in a timely manner) nor do any act or voluntarily suffer or
permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of
the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the
Insurances is imposed as aforesaid and in the absolute opinion of the Mortgagee its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Mortgagee would be adversely affected, the
Owner undertakes promptly to make such changes to the Insurances, or such alternative Insurance arrangements,
provided
that such alternative Insurance arrangements are available in the insurance market to the Owner at that time, as the
Mortgagee shall reasonably require;
5.1.13 not, without the prior written consent of the Mortgagee, settle, compromise or
abandon any claim in respect of any of the Insurances on the Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss;
5.1.14 promptly furnish the Mortgagee with full information regarding any casualties or other accidents or damage to the Vessel involving
an amount in excess of [*];
Exhibit I
Page 13
5.1.15 to apply or ensure the appliance of all such sums receivable in respect of the
Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received; and
5.1.16 that in the event of the Owner defaulting in insuring and keeping insured the Vessel as hereinbefore provided then the Mortgagee may (but shall not be bound to) insure the Vessel or enter the
Vessel in such manner and to such extent as the Mortgagee in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with interest thereon shall be paid on demand by the Owner to the Mortgagee.
6.
Owner’s Covenants as to Operation and Maintenance
Section 6.1 The Owner covenants with the Mortgagee and undertakes throughout the Security Period at the Owner’s own expense
that it will in respect of the Vessel:
6.1.1 keep it in a good and efficient state of repair so as to maintain it to the
highest classification available for a vessel of its age and type free of all recommendations and qualifications with Det Norske Veritas or another classification society listed on Schedule 7.21 of the Credit Agreement (or another internationally
recognized classification society reasonably acceptable to the Facility Agent). On the date hereof and annually thereafter, it will furnish to the Mortgagee a statement by such classification society that such classification is maintained. It will
comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on board as and when required thereby valid certificates showing compliance therewith and shall procure
that all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any materially
adverse modifications or alterations to the Vessel or any part thereof without the prior consent of the Mortgagee;
6.1.2
submit it to continuous survey in respect of its machinery and hull and such other surveys as may be required for classification purposes and, if so required by the Mortgagee, supply to the Mortgagee copies in English of the survey reports;
6.1.3 permit surveyors or agents appointed by the Mortgagee to board the Vessel at all reasonable times to inspect its
condition or satisfy themselves as to repairs proposed or already carried out and afford all proper facilities for such inspections;
6.1.4 comply, or procure that the relevant Manager will comply, with the ISM Code or any replacement of the ISM Code and in particular, without prejudice to the generality of the foregoing, as and when
required to do so by the ISM Code and at all times thereafter:
(a) hold, or procure that the relevant Manager
holds, a valid Document of Compliance duly issued to the Owner or the relevant Manager (as the case may be) pursuant to the ISM Code and a valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code;
(b) provide the Mortgagee with copies of any such Document of Compliance and Safety Management Certificate as soon as the
same are issued; and
Exhibit I
Page 14
(c) keep, or procure that there is kept, on board the Vessel a copy of
any such Document of Compliance and the original of any such Safety Management Certificate;
6.1.5 not employ the Vessel or
permit its employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or prohibited goods or in any manner whatsoever which may render it liable to condemnation in a prize court or to
destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world (whether war be declared or not) it will not employ the Vessel or permit its employment in carrying any contraband
goods;
6.1.6 not (i) cause or permit the Vessel to be operated in any manner contrary to law, (ii) abandon the
Vessel in a foreign port, (iii) engage in any unlawful trade or violate any law or carry any cargo that will expose the Vessel to penalty, forfeiture or capture, and (iv) do, or suffer or permit to be done, anything which can or may
injuriously affect the registration of the Vessel under the laws and regulations of the Commonwealth of the Bahamas and will at all times keep the Vessel duly documented thereunder.
6.1.7 promptly provide the Mortgagee with:
(a) all information which the Mortgagee may reasonably require regarding the Vessel, its employment, earnings, position and engagements;
(b) particulars of all towages and salvages; and
(c) copies of all charters and other contracts for its employment and otherwise concerning it;
6.1.8 notify the Mortgagee forthwith upon:
(a) any claim for material breach of the ISM Code or the ISPS Code being made against the Owner, an ISM Responsible Person or the manager of the Vessel in connection with the Vessel; or
(b) any other matter, event or incident, actual or which will or could lead to the material non-compliance with the ISM
Code or the ISPS Code;
and keep the Mortgagee advised in writing on a regular basis and in such detail as the Mortgagee shall
require, of the Owner’s and Vessel manager’s response to the items referred to in subclauses (a) and (b) above;
6.1.9 give notice to the Mortgagee promptly and in reasonable detail upon any Credit Party becoming aware of:
(a) accidents to the Vessel involving repairs the cost of which will or is likely to exceed [*];
(b) the Vessel becoming or being likely to become a Total Loss or a Compulsory Acquisition;
Exhibit I
Page 15
(c) any recommendation or requirement made by any insurer or
classification society or by any competent authority which is not complied with within any time limit relating thereto;
(d) any writ served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, its Earnings or Insurances;
(e) the occurrence of any Event of Default;
(f) the Vessel ceasing to be registered as a Bahamian vessel or anything which is done or not done whereby such
registration may be imperiled;
(g) it becoming impossible or unlawful for it to fulfill any of its obligations
under the Secured Debt Documents; and
(h) anything done or permitted or not done in respect of the Vessel by
any person which is likely to imperil the security created by the Secured Debt Documents;
6.1.10 promptly pay and discharge
all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel and keep proper books of account in respect thereof provided always that the Owner shall not be obliged to
compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested debt, damage or liability which, either individually or in aggregate exceeds [*] shall
forthwith be provided to the Mortgagee. As and when the Mortgagee may so require it will make such books available for inspection on behalf of the Mortgagee and provide evidence satisfactory to the Mortgagee that the wages and allotments and the
insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crew’s wages in respect of any tax liability are being properly accounted for and that the master has no claim for disbursements other
than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection;
6.1.11 maintain the type of the Vessel as at the date hereof and not put the Vessel into the possession of any person without the prior
consent of the Mortgagee for the purpose of work being done on it in an amount exceeding or likely to exceed [*] unless such person shall first have given to the Mortgagee a written undertaking addressed to the Mortgagee in terms reasonably
satisfactory to the Mortgagee agreeing not to exercise a lien on the Vessel or its Earnings for the cost of such work or for any other reason;
6.1.12 promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to whose jurisdiction the
Vessel may from time to time be subject provided always that the Owner shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested liabilities which,
either individually or in aggregate, exceed [*] shall be forthwith provided to the Mortgagee. If the Vessel is arrested or detained for any reason it will procure the Vessel’s immediate release by providing bail or taking such other steps as
the circumstances may require;
Exhibit I
Page 16
6.1.13 give to the Mortgagee at such times as it may from time to time require a
certificate, duly signed on the Owner’s behalf as to the amount of any debts, damages and liabilities relating to the Vessel and, if so required by any Secured Debt Document or this Deed, forthwith discharge such debts, damages and liabilities
to the Mortgagee’s satisfaction;
6.1.14 not transfer or change the flag of documentation or home port of the Vessel
except to the extent permitted by Section 9.13 of the Credit Agreement;
6.1.15 where the Vessel trades in the
territorial waters of the United States of America, take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time
hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a “
Relevant Jurisdiction
”) and, for this purpose shall (
inter
alia
) enter into a “Carrier
Initiative Agreement” with the United States’ Bureau of Customs and Border Protection (if such is possible) or into voluntary arrangements made under the Customs-Trade Partnership Against Terrorism of the United States of America (if such
is possible and appropriate to cruise vessels) and procure that the same (or a similar agreement or arrangement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the
Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading;
6.1.16 not enter into:
(a) any pooling agreement or other
arrangement for the sharing of any of the Earnings or the expenses of the Vessel; or
(b) any (x) demise
or bareboat charter other than a demise or bareboat charter of the Vessel made with another member of the NCLC Group or (y) charter or other form of deployment of the Vessel to a charterer that is not a member of the NCLC group (A) which,
with the exercise of any options for extension, could be for a period longer than 13 months or (B) which is other than at or about market rate at the time when the charter or deployment is fixed, unless, in each case, the Owner procures (or in
the case of clause (y) uses commercially reasonable efforts to procure) that (i) each of the Owner and the charterer assigns the benefit of any such charter to the Mortgagee, (ii) each of the Owner and the charterer assigns its
interest in the insurances in respect of the Vessel to the Mortgagee, and (iii) the charterer agrees to subordinate its interests in the Vessel to the interests of the Mortgagee, all on terms and conditions reasonably acceptable to the
Mortgagee;
6.1.17 except with the prior consent of the Mortgagee (not to be unreasonably withheld), not:
(a) permit any person other than the relevant Manager to be the manager of, including providing crewing services to, the
Vessel;
(b) permit any amendment to be made to the terms of the management agreement in respect of the Vessel
that is materially adverse to the Mortgagee,
provided
that the amendment does not imperil the security to be provided pursuant to the Secured Debt Documents or adversely affect the ability of any Credit Party to perform its obligations under
the Secured Debt Documents; or
Exhibit I
Page 17
(c) permit the Vessel to be employed other than within the NCL Group or
NCL America brand (as applicable); and
6.1.18 to comply in relation to the Vessel with the ISPS Code or any replacement of
the ISPS Code and in particular, without limitation:
(a) to procure that the Vessel and the company
responsible for the Vessel’s compliance with the ISPS Code comply with the ISPS Code;
(b) to maintain for
the Vessel throughout the Security Period a valid and current ISSC; and
(c) to provide the Mortgagee with a
copy of any such ISSC as soon as the same is issued.
7.
Expenses
.
Section 7.1 The Owner undertakes to pay to the Mortgagee on demand all reasonable and documented moneys whatsoever which the
Mortgagee shall or may expend be put to or become liable for in or about the protection, maintenance or enforcement of the security created by this Deed and the other Secured Debt Documents or in or about the exercise by the Mortgagee of any of the
powers vested in it under this Deed or under any of the other Secured Debt Documents and to pay interest thereon at the Default Rate from the date of demand until the date of actual receipt (whether before or after any relevant judgment).
Section 7.2 The Owner undertakes to pay on demand to the Mortgagee (or as it may direct) the amount of all investigation
and legal expenses of any kind whatsoever, stamp duties (if any), registration fees and any other charges incurred by the Mortgagee in connection with the preparation, completion and registration of the Secured Debt Documents or otherwise in
connection with the Secured Obligations and the security therefor.
8.
Protection and Maintenance of Security
.
Section 8.1 The Mortgagee shall without prejudice to its other rights and powers hereunder be entitled (but not bound)
at any time and as often as may be necessary to take any such action as it may in its absolute discretion think fit for the purpose of protecting the security created by this Deed and the other Secured Debt Documents and each and every reasonable
and documented expense or liability so incurred by the Mortgagee in or about the protection of the security shall be repayable to it by the Owner on demand together with interest thereon at the Default Rate from the date of demand until the date of
actual receipt whether before or after any relevant judgment.
Section 8.2 The total amount of the direct and contingent
obligations secured by the Mortgage is Five Hundred Eighty-Eight Million One Hundred and Twenty-Nine Thousand Two Hundred and Thirty Euros and Ninety-Four cents (€588,129,230.94)
plus
interest and performance of mortgage covenants.
Exhibit I
Page 18
Section 8.3 Without prejudice to the generality of the foregoing:
8.3.1 if the provisions of
Section 5.1
or any of them are not complied with the Mortgagee shall be at liberty to effect and
thereafter to maintain all such insurances upon the Vessel as it in its discretion may think fit;
8.3.2 if the provisions of
Sections 6.1.1
and
6.1.3
or any of them are not complied with the Mortgagee shall be at liberty to arrange for the carrying out of such repairs and/or surveys as it deems expedient or necessary;
8.3.3 if the provisions of
Section 6.1.8
or any of them are not complied with the Mortgagee shall be at liberty to pay and
discharge all such debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings as are therein mentioned and/or take any such measures as it deems expedient or necessary for the purpose of securing
the release of the Vessel; and
8.3.4 if the Mortgagee receives notice of any security created or arising after the date of
this Deed in respect of the Vessel (other than a Permitted Lien) or makes demand of the Owner for payment of any or all of the Secured Obligations in accordance with the Secured Debt Documents:
(a) the Mortgagee may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does
not do so it shall be treated as if it had done so at the time it received such notice or made such demand); and
(b) thereafter any amounts paid by the Owner to the Mortgagee in respect of the Secured Obligations, or realised or
recovered by the Mortgagee under this Deed, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations
and each and every expense or liability so incurred by the Mortgagee shall be recoverable from the Owner as provided in
Section 7.1
together
with interest thereon at the Default Rate.
9.
Enforcement of Rights
Section 9.1 Upon the occurrence and during the continuance of an Event of Default the Mortgagee shall become forthwith entitled as
and when it may see fit to put into force and to exercise all the powers possessed by it as mortgagee and chargee of the Mortgaged Premises and in particular:
9.1.1 to take possession of the Vessel;
9.1.2 to require that all policies,
contracts and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such brokers as the Mortgagee may nominate;
Exhibit I
Page 19
9.1.3 to collect, recover, compromise and give a good discharge for all claims then
outstanding or thereafter arising under the Insurances or any of them and to take over or institute (if necessary using the name of the Owner) all such proceedings in connection therewith as the Mortgagee in its absolute discretion may think fit and
to permit the brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
9.1.4 to
discharge, compound, release or compromise claims in respect of the Vessel which have given or may give rise to any charge or lien on the Vessel or which are or may be enforceable by proceedings against the Vessel;
9.1.5 to sell the Vessel or any share therein with or without prior notice to the Owner and with or without the benefit of any
charterparty by public auction or private contract at home or abroad and upon such terms as the Mortgagee in its absolute discretion may determine with power to postpone any such sale and without being answerable for any loss occasioned by such sale
or resulting from postponement thereof;
9.1.6 pending sale of the Vessel, to manage, insure, maintain and repair the Vessel
and to employ or lay up the Vessel in such manner and for such period as the Mortgagee in its absolute discretion may deem expedient and for the purposes aforesaid the Mortgagee shall be entitled to do all acts and things incidental or conducive
thereto and in particular to enter into such arrangements respecting the Vessel, its insurance, management, maintenance, repair and employment in all respects as if the Mortgagee were the owners of the Vessel and without being responsible for any
loss thereby incurred;
9.1.7 to recover from the Owner on demand any such losses as may be incurred by the Mortgagee in or
about the exercise of the power vested in the Mortgagee under
Section 9.1.6
; and/or
9.1.8 to recover from the
Owner on demand all expenses, payments and disbursements incurred by the Mortgagee in or about or incidental to the exercise by it of any of the powers aforesaid together with interest thereon at the Default Rate,
provided
always that upon any sale of the Vessel or any share therein by the Mortgagee pursuant to
Section 9.1.5
the purchaser shall
not be bound to see or enquire whether the Mortgagee’s power of sale has arisen in the manner herein provided and the sale shall be deemed to be within the power of the Mortgagee and the receipt of the Mortgagee for the purchase money shall
effectively discharge the purchaser who shall not be concerned with the manner or application of the proceeds of sale or be in any way answerable therefor.
10.
Application of Moneys
. All moneys received by the Mortgagee in respect of:
Section 10.1 sale by the Mortgagee of the Vessel or any share therein;
Section 10.2 recovery under the Insurances; or
Section 10.3 Compulsory Acquisition Compensation;
shall be applied by it in
accordance with Section 4.05 of the Credit Agreement.
Exhibit I
Page 20
11.
Receivers
.
Section 11.1 At any time after the occurrence and during the continuation of an Event of Default, or if the Owner requests it to do
so, the Mortgagee may by a written instrument and without notice to the Owner appoint one or more suitably experienced and reputable persons as Receiver of all or any part of the Vessel, each such person being entitled to act individually as well as
jointly and being for all purposes the agent of the Owner.
Section 11.2 The appointment of a Receiver pursuant to
Section 11.1 shall be deemed to be subject to the following provisions:
11.2.1 the Receiver shall be the agent of the
Owner, and the Owner alone shall be responsible for his acts, defaults and payment of remuneration;
11.2.2 the Receiver shall
be entitled to remuneration for services at a rate to be determined by the Mortgagee (acting reasonably) from time to time on the basis of charging from time to time adopted by him or his firm (without being limited to the maximum rate specified by
the Law of Property Act 1925);
11.2.3 any Receiver shall have and be entitled to exercise all the rights, powers and remedies
conferred upon the Mortgagee by this Deed and by applicable law with respect to the Vessel and/or the Mortgage (including, without limitation, all of the powers and rights of a legal and beneficial owner and the power to do or omit to do anything
which the Owner itself could do or omit to do); and
11.2.4 any Receiver shall have the power to do all things (including
bringing or defending proceedings in the name or on behalf of the Owner) which seem to the Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred on or vested in such Receiver or
(b) the exercise of the Mortgage.
Sections 109(6) and 109(8) of the Law of Property Act 1925 shall not apply in relation to any Receiver
appointed pursuant to Section 11.1.
In addition to the powers conferred on the Mortgagee by this Deed, each Receiver appointed pursuant
to Section 11.1 shall have in relation to the Vessel (i) all the powers conferred by the Law of Property Act 1925 (as extended by this Deed) on a Receiver appointed under that Act and (ii) (whether or not such Receiver is an
administrative receiver) all the powers of an administrative receiver set out in Schedule 1 to the Insolvency Act 1986.
12.
No Waiver
. No delay or omission of the Mortgagee to exercise any right or power vested in it under the Secured Debt Documents or any of them shall impair such right or power or be construed as a waiver of or as acquiescence in any default by
the Owner and in the event of the Mortgagee at any time agreeing to waive any such right or power such waiver shall be revocable by the Mortgagee at any time and the right or power shall thenceforth be again exercisable as though there had been no
such waiver.
13.
Power of Delegation
. The Mortgagee shall be entitled at any time and as often as may be expedient to
delegate all or any of the powers and discretions vested in it by the Secured Debt Documents or any of them (including the power vested in it by virtue of
Section 14
) in such manner upon such terms and to such persons as the Mortgagee in
its absolute discretion may think fit.
Exhibit I
Page 21
14.
Power of Attorney
.
Section 14.1 The Owner hereby irrevocably appoints the Mortgagee as its Attorney for the duration of the Security Period for the
purpose of doing in its name all acts which the Owner itself could do in relation to the Vessel;
provided
,
however
, that such power shall not be exercisable by or on behalf of the Mortgagee until payment of the Secured Obligations
shall have been demanded under
Section 9
.
Section 14.2 The exercise of such power by or on behalf of the
Mortgagee shall not put any person dealing with the Mortgagee upon any enquiry as to whether payment of the Secured Obligations has been demanded, such person shall not be in any way affected by notice that payment of the Secured Obligations has not
been so demanded and the exercise by the Mortgagee of such power shall be conclusive evidence to such person of the Mortgagee’s right to exercise the same nor shall such person be in any way affected by any total or partial discharge of
liabilities or variation of terms which is effected by or connected with any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
15.
Further Assurance
. The Owner hereby further undertakes at its own expense to execute, sign, perfect, do and (if required) register every such further assurance document, act or thing as in the
opinion of the Mortgagee may be necessary or desirable for the purpose of more effectually mortgaging and charging the Mortgaged Premises or perfecting the security constituted thereby.
16.
Assignment
. The Mortgagee may not resign, assign or transfer in its capacity as security trustee, except in accordance with
the terms of the Security Trust Deed.
17.
Waiver of Rights as Surety
.
Section 17.1 The rights of the Mortgagee under the Mortgage and/or this Deed, the security constituted by the Mortgage and/or this
Deed and the warranties, covenants, obligations and undertakings of the Owner contained in the Mortgage and/or, this Deed shall not in any way be discharged, impaired or otherwise affected by:
17.1.1 any forbearance (whether as to payment or otherwise) or any time or other indulgence granted to any other party to any one or more
of the Secured Debt Documents under or in connection with any of the Secured Debt Documents;
17.1.2 any amendment or
variation of any of the Secured Debt Documents;
17.1.3 any failure of any of the Secured Debt Documents to be legal, valid,
binding and enforceable in relation to any Credit Party for any reason whatsoever;
17.1.4 the winding-up or dissolution of
any Credit Party,
17.1.5 the release (whether in whole or in part) of, or the entering into of any compromise or composition
with, any Credit Party; or
17.1.6 any other act, omission, thing or circumstance which would or might, but for this
provision, operate to discharge, impair or otherwise affect the same.
Exhibit I
Page 22
Section 17.2 Until the Secured Obligations have been unconditionally and
irrevocably paid and discharged in full, all commitments under the Secured Debt Documents have been terminated and all letters of credit issued thereunder have been terminated the Owner shall not by virtue of any payment made hereunder or under the
Mortgage on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, the Mortgage and/or this Deed or by virtue of any relationship between or transaction involving, the
Owner and any Credit Party:
17.2.1 exercise any rights of subrogation in relation to any rights, security or moneys held or
received or receivable by the Mortgagee or any other person; or
17.2.2 exercise any right of contribution from any Credit
Party under any one or more of the Secured Debt Documents; or
17.2.3 exercise any right of set-off or counterclaim against
any Credit Party; or
17.2.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any
Credit Party; or
17.2.5 unless so directed by the Mortgagee (when the Owner will prove in accordance with such directions),
claim as a creditor of any Credit Party in competition with the Mortgagee,
and the Owner shall hold in trust for the Mortgagee and forthwith
pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
Section 17.3 The Owner’s liabilities under this Deed shall not be in any way affected by any total or partial discharge of
liabilities or variation of terms which is effected by or connected with any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
18.
No Obligations Imposed on Mortgagee
.
Without prejudice to paragraph 10 of Schedule 1 of the Merchant Shipping Act 1995, the Owner shall remain liable to perform all obligations connected
with the Mortgaged Premises and the Mortgagee shall not, in any circumstances, have or incur any obligation of any kind in connection with the Mortgaged Premises.
19.
Law of Property Act 1925 not applicable
. The Owner hereby waives the entitlement conferred by section 93 of the Law of Property Act 1925 and agrees that section 103 of that Act shall not apply
to the security created by the Mortgage and this Deed.
20.
No Liability of Mortgagee
. The Mortgagee shall not be
obliged to check the nature or sufficiency of any payment received by it or him under the Mortgage or this Deed or to preserve, exercise or enforce any right forming part of, or relating to, any item of the Mortgaged Premises.
Exhibit I
Page 23
21.
No Requirement to Commence Proceedings
. The Mortgagee will not need to
commence any proceedings under, or enforce any lien created by the Secured Debt Documents before commencing proceedings under, or enforcing any lien created by, the Mortgage or this Deed.
22.
No Restriction on Other Rights
. Nothing in the Mortgage or this Deed shall be taken to exclude or restrict any power, right or
remedy which the Mortgagee or any other Credit Party may at any time have under:
(a) any other Secured Debt
Document; or
(b) the law of any country or territory the courts of which have or claim any jurisdiction in
respect of the Owner, the Vessel or any other item of the Mortgaged Premises.
23.
Exercise of Other Rights
. The
Mortgagee may exercise any right under the Mortgage and this Deed before it or any other Credit Party has exercised any right referred to in Section 22(a) or (b) above.
24.
Settlement or Discharge Conditional
. Any settlement or discharge under the Mortgage and this Deed (or either of them) between
the Mortgagee or any other Credit Party and the Owner shall be conditional upon no security or payment to the Mortgagee or any other Credit Party by the Owner or any other person being set aside, adjusted or ordered to be repaid, whether under any
insolvency law or otherwise.
25.
Severability of Provisions
. If any provision of this Deed is or subsequently becomes
void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of this Deed or of the provisions of any other Secured Debt Document.
26.
Notices
.
Section 26.1 Each communication to be made hereunder shall unless otherwise stated, be made in writing by telefax or letter.
Section 26.2 Any notice, demand, communication or document to be made or delivered by the Mortgagee to the Owner pursuant to this Deed shall (unless the Owner has by fifteen (15) days’
written notice to the Mortgagee specified another address) be made or delivered to the Owner at c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the Chief Financial Officer, telefax no
+1 305 436 4140, and the Legal Department, telefax no +1 305 436 4117) (but one (1) copy shall suffice) and shall be deemed to have been made or delivered (in the case of any communication made by telefax) when transmission of such
telefax communication has been completed or (in the case of any communication made by letter) when left at that address or (as the case may be) five (5) days after being deposited in the post postage prepaid in an envelope addressed to it at
that address;
provided
that any communication or document to be made or delivered to the Mortgagee shall be effective only when received by the Mortgagee and then only if the same is expressly marked for the attention of the department or
officer specified by the Mortgagee for this purpose from time to time.
Exhibit I
Page 24
Section 26.3 Each communication and document made or delivered by one
(1) party to another party or parties pursuant to this Deed shall be in the English language or accompanied by a translation thereof into English certified (by an officer of the person making or delivering the same) as being a true and accurate
translation thereof.
27.
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
.
Section 27.1 This Deed and any non-contractual obligations arising out of or in connection with it shall be governed by and
construed in accordance with the Laws of England and for the exclusive benefit of the Mortgagee the Owner hereby irrevocably submits to the jurisdiction of the High Courts of Justice in England. Such submission shall not limit the right of the
Mortgagee to commence any proceedings relating to this Deed (in addition or alternatively) in any other jurisdiction which the Mortgagee deem fit.
Section 27.2 For the purpose of any legal proceedings arising out of or in connection with the Mortgage and/or this Deed the Owner irrevocably appoints the Process Agent as its agent to accept
service on its behalf without prejudice to any other lawful means of service.
Section 27.3
THE OWNER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION DEED BROUGHT IN THE COURTS REFERRED TO IN SECTION 27.1 ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
* * *
Exhibit I
Page 25
IN WITNESS WHEREOF, the Owner and the Mortgagee have caused this Deed to be duly
executed by each of their authorized representatives the day and year first above written.
Signed as a deed and delivered on
behalf of
BREAKAWAY TWO, LTD.
, a Bermuda company, as Owner, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the company
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BREAKAWAY TWO, LTD.
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By:
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Name:
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Title:
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Signed as a deed and
delivered on behalf of
KFW IPEX-BANK GMBH.
, a bank organized under the laws of Germany, as Mortgagee, by [full name of person signing], being a person who, in accordance with the laws of that territory is acting under the authority of the
bank
Exhibit I
Page 26
[ACKNOWLEDGMENT
STATE )
: SS:
COUNTY OF )
On this [ ] day of [DATE], before me personally appeared [NAME], known to me to be the person who executed the foregoing instrument,
who, being by me duly sworn did depose and say that he resides at _______________________, _____________; that he is [TITLE] of BREAKAWAY TWO, LTD., the Bermuda company described in and which executed the foregoing instrument; that he signed his
name pursuant to authority granted to him by BREAKAWAY TWO, LTD.; and that he further acknowledged that said instrument is the act and deed of BREAKAWAY TWO, LTD.
[FOR USE IN THE
COMMONWEALTH OF THE BAHAMAS]
EXHIBIT J
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [
—
] 2010
HULL NO. S.
692
ASSIGNMENT OF CONTRACTS
between
BREAKAWAY TWO, LTD.
as Borrower
and
KFW
IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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COVENANT TO PAY
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5
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3.
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LEGAL ASSIGNMENT
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5
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4.
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THE CONTRACT
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6
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5.
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CONTINUING SECURITY
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8
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6.
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REPRESENTATIONS AND WARRANTIES
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9
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7.
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UNDERTAKINGS
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11
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8.
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FURTHER ASSURANCE
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12
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9.
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ENFORCEMENT OF SECURITY
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12
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10.
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RECEIVERS
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13
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11.
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APPLICATION OF PROCEEDS
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14
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12.
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POWER OF ATTORNEY
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14
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13.
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RELEASE OF THE SECURITY
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14
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14.
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PAYMENTS
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14
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15.
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WAIVERS AND REMEDIES
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15
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16.
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ADDITIONAL PROVISIONS
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15
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17.
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ASSIGNMENT
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16
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18.
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NOTICES
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16
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19.
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GOVERNING LAW
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18
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20.
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COUNTERPARTS AND EFFECTIVENESS
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19
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SCHEDULE 1 FORMS OF NOTICE OF ASSIGNMENT
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20
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SCHEDULE 2 FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
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30
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
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40
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White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
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(1)
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BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”); and
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(2)
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KFW IPEX-BANK GMBH,
as collateral agent for and on behalf of the Secured Creditors (the “
Collateral Agent
”, which expression includes any person
which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
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RECITALS
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(A)
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The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
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The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
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(C)
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The Borrower and the Collateral Agent intend this Assignment to take effect as a deed.
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(D)
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The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreement, the Security Trust
Deed and the Intercreditor Agreement.
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In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
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(a)
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Part 1, in the case of the Construction Contract;
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(b)
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Part 2, in the case of the Refund Guarantees; and
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(c)
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Part 3, in the case of the Construction Risks Insurance Policies; and
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or in each case in such other form as may be approved by the Collateral Agent.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit Agreement.
“
Assigned Rights
” means the Borrower’s rights, title, interest and
benefits in, to and in respect of the Contracts.
“
Construction Contract
” means the construction contract
dated 24 September 2010 between the Borrower, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel (as defined in the Credit Agreement).
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the
Shipbuilder and the Borrower in connection with the construction of the Vessel under the Construction Contract.
“
Contracts
” means each of the:
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(a)
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the Construction Contract;
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(b)
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the Refund Guarantees; and
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(c)
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the Construction Risks Insurance Policies.
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“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, the Parent, the Borrower, the Joint Lead Arrangers (as
defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Borrower, the Lenders, the collateral agent under the Jade Credit
Facility, the collateral agent under the Jewel Credit Facility and the Collateral Agent.
“
Lender Creditors
”
means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in
respect of principal, interest or otherwise, whether actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1 (
Forms of Notice of Assignment
) being:
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(a)
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Part 1, in the case of the Construction Contract;
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(b)
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Part 2, in the case of each Refund Guarantees;
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(c)
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Part 3, in the case of the Construction Risks Insurance Policies;
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or in each case such other form as may be approved by the Collateral Agent.
2
“
Other Creditors
” means each Lender or any affiliate thereof with which the
Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even
if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 2 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the
Borrower, and the Collateral Agent as security trustee on behalf of the Term Loan Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Assignment, pursuant to
any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all
refund guarantees from time to time issued in favour of the Borrower to secure certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund
guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
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(a)
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none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
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(b)
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all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
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“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
“
Shipbuilder
” means Meyer Werft GmbH.
3
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1.2
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Continuing Event of Default
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An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
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1.4
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References to Agreements
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Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
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(a)
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such agreement or document as amended, varied, novated or supplemented from time to time;
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(b)
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any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
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(c)
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any other agreement or document entered into pursuant to or in accordance with such agreement or document.
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A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
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(a)
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the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
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(b)
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the words “except to the extent that” and all the words thereafter in Section 3(2); and
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4
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
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1.9
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Clause and Schedule Headings
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Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Borrower agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Collateral Agent.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured
Obligations.
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3.2
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Non-Assignable Rights
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The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
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(a)
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hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
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5
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(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Borrower shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Borrower
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
|
|
3.4
|
Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Contract
|
|
|
(a)
|
The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Borrower under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or
supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the
Collateral Agent shall be
|
6
|
|
required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely
affects the ability of the Borrower to perform its obligations under the Credit Documents;
|
|
|
(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Borrower on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
|
|
|
(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts).
|
|
|
(b)
|
Notwithstanding anything to the contrary herein, the Borrower may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
|
|
|
(c)
|
The Borrower acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
|
|
4.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
7
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the Collateral
Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
8
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Borrower acknowledges that the Collateral Agent has entered
into this Assignment in reliance on those representations and warranties.
9
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreement, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
10
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement and the Credit Agreement, no person other
than the Borrower has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise,
the benefit of all or any of the Assigned Rights.
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Borrower
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Borrower shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
11
|
|
(a)
|
The Borrower shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Borrower shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement
to Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Collateral Agent until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times
and in such manner as it thinks fit.
12
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal
in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Borrower.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
13
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement or, following the termination thereof, in accordance with the provisions of the Credit Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Borrower shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
14
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Borrower in
15
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any
such judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit
Agreement.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deed.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
16
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to
17
the contrary) communication) and mailed, telexed, telecopied, delivered or electronic mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all
notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Borrower agree that they (x) shall notify each other in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when
mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and
properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Borrower to the Collateral Agent, only if it is addressed in
such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
18
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower and the Collateral Agent.
19
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
Part 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
Industriegebiet Süd
D-26871 Papenburg
Germany
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of the construction contract dated 24 September 2010 between the Borrower and you, as shipbuilder
in relation to the design, engineering, building, launching, equipping and outfitting of the passenger cruise ship (the “
Ship
”) with provisional hull number 692 (the “
Construction Contract
”).
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Borrower as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as the Collateral Agent and Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and
Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent, all payments to be made to the Borrower under or arising from the Construction
Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
20
|
(c)
|
following an Event of Default, all remedies of the Borrower provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Contract are assigned to the
Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Borrower may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or
changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Contract. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the
Collateral Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
21
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
22
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
—
] and issued
by you as refund guarantor in favour of the Borrower pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund
Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
With effect from your receipt of
this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Borrower provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Collateral Agent;
|
23
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Borrower has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is
given by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Borrower
which meets the Borrower’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by the Facility Agent (as defined in the Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Refund Guarantee. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Collateral Agent).
24
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
25
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated
[
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Borrower in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.692 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Borrower under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Borrower provided for in the Construction Risks Insurance Policy or available at law or in equity shall be
exercisable by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
26
|
(e)
|
the Borrower has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver,
amendment or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written
consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the
ability of the Borrower to perform its obligations under the Credit Documents (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd., the Borrower, the Joint Lead
Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as Collateral Agent and as Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent).
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Risks Insurance Policy. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Borrower.
27
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
28
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
29
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE SHIPBUILDER
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the
Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Construction Contract) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title,
interests and benefits in, to or in respect of the Construction Contract and that we will comply with the terms of the Notice.
We also
confirm that the Construction Contract is in full force and effect in accordance with its terms. We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized
terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable) with respect to the Construction Contract.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
Meyer Werft GmbH
as
Shipbuilder
|
|
|
|
By:
|
|
|
|
Date:
|
30
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND
GUARANTOR
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the
Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title,
interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree
and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
[the Refund Guarantor]
as Refund
Guarantor
|
|
|
|
By:
|
|
|
|
Date:
|
31
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[
To be printed only on copy of
the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
HULL NO. S. 692
(the “
Vessel
”)
BREAKAWAY TWO, LTD.
(the
“
Borrower
”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (i) (other than in respect of junior liens held by the Collateral Agent as security trustee on behalf of certain “term loan creditors” in respect of the Construction Risks
Insurance Policy) we have not received notice of any other assignments or charges of or over any of the Borrower’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply
with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Borrower as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its authorised managers or agents and in consideration of you and the Borrower approving us as the appointed brokers in connection with the
insurances covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Borrower and acknowledged by underwriters in accordance with market practice; and
|
32
|
4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
|
|
8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
33
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
[the Broker]
as
[Broker]
|
|
|
|
By:
|
|
|
|
Date:
|
34
ANNEX 1
DETAILS OF INSURANCES
35
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
36
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated
[
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Borrower in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.692 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Borrower under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Borrower provided for in the Construction Risks Insurance Policy or available at law or in equity shall be
exercisable by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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37
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(e)
|
the Borrower has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver,
amendment or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written
consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the
ability of the Borrower to perform its obligations under the Credit Documents (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd., the Borrower, the Joint Lead
Arrangers (as defined therein), the Lenders (as defined therein), KfW IPEX-Bank GmbH as Collateral Agent and as Facility Agent (the “
Facility Agent
”), Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent).
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(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Borrower on or prior to such termination or where the prior written consent is given by the Facility Agent to such termination;
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(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Construction Risks Insurance Policy. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of
no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
38
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
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|
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Yours faithfully
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For and on behalf of
BREAKAWAY TWO, LTD.
|
39
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
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|
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[Name of Issuer]
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|
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[Date of Refund Guarantee
|
]
|
40
SIGNATORIES
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Signed as a deed on behalf of
BREAKAWAY TWO, LTD,
a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH,
a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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41
EXHIBIT K
FORM OF SOLVENCY CERTIFICATE
[
], 2010
This Solvency Certificate is delivered pursuant to Section 6.10 of the Credit Agreement, dated as of
[
], 2010, among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), Breakaway Two, Ltd., a Bermuda company (the “
Borrower
”), the
Lenders from time to time party thereto, KfW IPEX-Bank GmbH, as Facility Agent, Collateral Agent under the Security Documents and CIRR Agent, Nordea Bank Norge ASA, as Documentation Agent, Commerzbank Aktiengesellschaft, as Hermes Agent and the
other parties thereto (as the same may be amended, restated, novated or otherwise modified from time to time, the “
Credit Agreement
”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
The undersigned, a senior financial officer of the Parent, hereby certifies to the
Facility Agent and each of the Lenders, solely in such capacity and on behalf of the Parent as follows:
1. I
am a senior financial officer of the Parent. I am familiar with the Transaction, and have reviewed the financial statements referred to in Section 8.05 of the Credit Agreement and other such documents and made such investigations as I have
deemed relevant for the purposes of this Solvency Certificate.
2. On and as of the date hereof, immediately
after giving effect to the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of the Vessel), the Parent and its Subsidiaries taken as a
whole (i) are not insolvent and will not be rendered insolvent by the Indebtedness incurred in connection with the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with
respect thereto and to the purchase of the Vessel); (ii) will not have unreasonably small capital with which to conduct the business in which they are respectively engaged as such businesses are now conducted and are proposed to be conducted
following the Borrowing Date to occur on or about the date hereof; and (iii) have not incurred debts beyond their ability pay such debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become
absolute, matured, or otherwise become payable.
This Solvency Certificate is being delivered by the undersigned officer only
in his capacity as a senior financial officer of the Parent and not individually and the undersigned shall have no personal liability to the Agents or the Lenders with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first
set forth above.
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NCL CORPORATION LTD.
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By:
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Title:
|
EXHIBIT L
F
ORM
OF
A
SSIGNMENT
A
GREEMENT
|
To:
|
[ ] as Facility Agent and
[ ], [ ] as Hermes Agent,
[ ] as Parent, for and on behalf of the Borrower
|
|
From:
|
[the
Existing Lender
] (the “
Existing Lender
”) and [the
New Lender
] (the “
New Lender
”)
|
Dated:
Breakaway Two, Ltd.
– €529,846,154 Credit Agreement
dated
[ ] (the “Credit Agreement”)
|
1.
|
We refer to the Credit Agreement and to the Intercreditor Agreement (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall take
effect as an Assignment Agreement for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
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2.
|
We refer to section 13.07 (
Procedure and Conditions for Assignment
) of the Credit Agreement:
|
|
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(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Credit Agreement, the other Credit Documents and in respect of
the Collateral which correspond to that portion of the Existing Lender’s Commitments and participations in Borrowings under the Credit Agreement as specified in the Schedule attached hereto.
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|
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(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and
participations in Borrowings under the Credit Agreement specified in the Schedule attached hereto.
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(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
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3.
|
The proposed date of the assignment is [ ].
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4.
|
On the date of the assignment the New Lender becomes:
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(a)
|
Party to the relevant Credit Documents (other than the Intercreditor Agreement and the Security Trust Deed) as a Lender; and
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(b)
|
Party to the Intercreditor Agreement as an ECF Lender; and
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(c)
|
Party to the Security Trust Deed as a Secured Creditor[.][; and]
|
EXHIBIT L
2
|
|
(d)
|
[Party to the Interaction Agreement.]
1
|
|
5.
|
The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule.
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|
6.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
Responsibility of Existing Lenders
).
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7.
|
We refer to Clause 9.2 (
Change to the Parties
) of the Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) in the Security Trust Deed.
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|
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(a)
|
In consideration of the New Lender being accepted as an ECF Lender for the purposes of the Intercreditor Agreement (and as defined therein), the New Lender confirms
that, as from the date of assignment, it intends to be party to the Intercreditor Agreement as an ECF Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an ECF Lender and agrees that it
shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
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|
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(b)
|
In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the assignment, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
|
|
8.
|
This Agreement acts as notice to the Facility Agent (on behalf of each Lender Creditor) and, upon delivery in accordance with section 13.08 (
Copy of Transfer
Certificate or Assignment Agreement to Parent
), to the Parent (on behalf of the Borrower) of the assignment referred to in this Agreement.
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|
9.
|
We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the assignment becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
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1
|
Applicable to any New Lender that elects to become a Refinanced Bank
|
EXHIBIT L
3
|
10.
|
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.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
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12.
|
This Agreement takes effect as a deed.
|
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13.
|
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
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Note:
|
The execution of this Assignment Agreement may not assign a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It is
the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect an assignment of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
|
EXHIBIT L
4
THE SCHEDULE
Commitment/rights and obligations to be transferred by assignment, release and accession
[
insert relevant details
]
[
Notice Office address, fax number and attention details for notices and account details for payments
]
EXHIBIT L
SIGNATORIES
[Existing Lender]
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Executed as a deed by
[name of Existing Lender],
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender]Executed as a deed by
[name of New Lender],
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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|
Director
|
This Agreement is accepted as an Assignment
Agreement for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the assignment is confirmed as [ ].
EXHIBIT L
6
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of
receipt of notice of the assignment referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
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|
[Facility Agent]
|
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|
Executed as a deed by
[Facility Agent]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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|
[Hermes Agent]
|
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|
Executed as a deed by
[Hermes Agent],
acting by [
name of director
]:
|
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|
|
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|
[
Signature of Director
]
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|
Director
|
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[
Signature of Director
]
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Director
|
EXHIBIT L
7
|
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|
[NCL Corporation Ltd.]
2
|
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|
[Signed as a deed by [
NCL Corporation Ltd.
], a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company.
|
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Signature(s)
|
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|
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|
|
|
|
|
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Authorised [signatory] [signatories]]
|
|
2
|
To be signed by the Company only if the assignment is pursuant to section 13.01(a)(ii)
|
EXHIBIT M
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is delivered to you on behalf of the Company (as hereinafter defined) pursuant to Section 9.01(f) of the Credit Agreement, dated as
of [
], 2010 (as amended, supplemented, restated, novated or modified from time to time, the “
Credit Agreement
”), among NCL Corporation Ltd., a Bermuda
company (the “
Company
”), Breakaway Two, Ltd., a Bermuda company (the “
Borrower
”), the Lenders from time to time party thereto, Nordea Bank Norge ASA, as Documentation Agent, KfW IPEX-Bank GmbH as Facility Agent,
Collateral Agent and CIRR Agent (in such capacity, the “
CIRR Agent
”), Commerzbank Aktiengesellschaft, as Hermes Agent, and the other parties thereto. Capitalized terms defined in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.
1. I am a duly elected, qualified and acting senior financial officer of the
Company.
2. I have reviewed and am familiar with the contents of this Certificate. I am providing this Certificate solely in
my capacity as an officer of the Company. The matters set forth herein are true to the best of my knowledge after diligent inquiry.
3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and
financial condition of the Company during the accounting period covered by the financial statements true and correct copies of which are attached hereto as ANNEX 1 (the “
Financial Statements
”). The Financial Statements have been
prepared in accordance with the requirements of the Credit Agreement.
4. Attached hereto as ANNEX 2 are the computations
showing (in reasonable detail) compliance with the covenants specified therein. All such computations are true and correct.
[5. On the date hereof, no Default or Event of Default has occurred and is continuing.]
1
|
1
|
If any Default or Event of Default exists, include a description thereof, specifying the nature and extent thereof (in reasonable detail).
|
Exhibit M
Page 2
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the Company this
day of
.
|
|
|
|
|
|
|
NCL CORPORATION LTD.
|
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
ANNEX 1 to
Compliance Certificate
CONSOLIDATED FINANCIAL STATEMENTS
ANNEX 2 to
Compliance Certificate
COMPLIANCE WORKSHEET
The calculations described herein is as of
,
(the “Computation Date”) and pertains to the period from
,
to
,
(the “Test Period”).
Part A. Free Liquidity
|
|
|
|
|
|
|
1. Aggregate Cash Balance on the Computation Date.
|
|
|
$
|
|
|
|
|
|
2. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
|
$
|
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
|
$
|
|
|
|
|
|
4. Is Item 3 equal to or greater than [*] pursuant to Section 10.06 of the Credit
Agreement?
|
|
|
YES/NO
|
|
Part B. Total Net Funded Debt to
Total Capitalization
|
|
|
|
|
|
|
1. Indebtedness for Borrowed Money of the NCLC Group on the Computation Date.
|
|
|
$
|
|
|
|
|
|
2. The amount of any Indebtedness for Borrowed Money of any person which is not a member of
the NCLC Group but which is guaranteed by a member of the NCLC Group on the Computation Date.
|
|
|
$
|
|
|
|
|
|
3. Cash Balance on the Computation Date.
|
|
|
$
|
|
|
|
|
|
4. Item 1
plus
Item 2
minus
Item 3
2
|
|
|
$
|
|
|
|
|
|
5. Total Capitalization on the Computation Date
|
|
|
$
|
|
|
|
|
|
6. Total Net Funded Debt to Total Capitalization Ratio (Item 4:Item 5) on the Computation
Date.
|
|
|
: 1.00
|
|
|
2
|
Any Commitments under the Credit Agreement and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group
which remain undrawn shall not be counted as cash or indebtedness for the purposes of this calculation.
|
Exhibit M
Page 2
|
|
|
|
|
7. The maximum Total Net Funded Debt to Total Capitalization Ratio pursuant to Section 10.07
of the Credit Agreement:
|
|
[*]
|
Part C. Collateral Maintenance
|
|
|
|
|
1. Outstanding principal amount of Loans on the Computation Date.
|
|
$
|
|
|
|
|
2. Vessel Value.
|
|
$
|
|
|
|
|
3. Minimum Vessel Value for the Vessel permitted pursuant to Section 10.08 of the Credit
Agreement.
|
|
Item 1 multiplied by [*]
|
|
|
|
|
4. Is Item 2 equal to or greater than Item 3 pursuant to Section 10.08 of the
Credit Agreement?
|
|
YES/NO
|
Part D. Consolidated EBITDA to Consolidated
Debt Service
|
|
|
|
|
1. Consolidated Net Income from the Parent’s operations for the Test
Period.
|
|
$
|
|
|
|
|
2. Aggregate amounts deducted in determining Consolidated Net Income for the Test Period in
respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for the Test
Period.
|
|
$
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
$
|
|
|
|
|
4. Consolidated Debt Service for the Test Period.
|
|
$
|
|
|
|
|
5. Consolidated EBITDA to Consolidated Debt Service Ratio (Item 3:Item 4) on the Computation
Date.
|
|
: 1.00
|
|
|
|
|
6. The minimum Consolidated EBITDA to Consolidated Debt Service Ratio pursuant to
Section 10.09 of the Credit Agreement:
|
|
[*]
|
|
|
|
|
7. Aggregate Cash Balance on the Computation Date.
|
|
$
|
Exhibit M
Page 3
|
|
|
|
|
8. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
$
|
|
|
|
|
9. Item 7
plus
Item 8
|
|
$
|
|
|
|
|
10. Is (x) Item 9 for the NCLC Group equal to or greater than [*] at all times during the period
of four consecutive fiscal quarters ending at the end of the Test Period or (y) Item 5 greater than or equal to Item 6 pursuant to Section 10.09 of the Credit Agreement?
|
|
YES/NO
|
EXHIBIT N
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY TWO, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate Collateral Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
EXHIBIT N
TABLE OF CONTENTS
|
|
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|
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|
Page
|
|
|
|
|
|
|
1.
|
|
DEFINITIONS AND INTERPRETATION
|
|
|
2
|
|
|
|
|
|
|
2.
|
|
PRIORITY AND RANKING
|
|
|
7
|
|
|
|
|
|
|
3.
|
|
NOTIFICATIONS
|
|
|
8
|
|
|
|
|
|
|
4.
|
|
RESTRICTIONS ON ENFORCEMENT
|
|
|
8
|
|
|
|
|
|
|
5.
|
|
MANNER OF ENFORCEMENT
|
|
|
9
|
|
|
|
|
|
|
6.
|
|
TURNOVER OF RECEIPTS
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11
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7.
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APPLICATION OF PROCEEDS
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11
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8.
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PRESERVATION
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12
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9.
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CHANGES TO THE PARTIES
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14
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10.
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POWER OF ATTORNEY
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15
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11.
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AMENDMENTS
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15
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12.
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THIRD PARTY RIGHTS
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15
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13.
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COUNTERPARTS
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15
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14.
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NOTICES
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15
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15.
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PERPETUITY PERIOD
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17
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16.
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GOVERNING LAW
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17
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17.
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ENFORCEMENT
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18
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SCHEDULE 1 ECF SECURITY DOCUMENTS
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19
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SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
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20
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SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
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21
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SCHEDULE 4 ADDRESS DETAILS
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23
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(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated [
•
] 2010 and made
between:
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(1)
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KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
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(2)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
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(3)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
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(4)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
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(5)
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BREAKAWAY TWO, LTD.
(the “
Debtor
”);
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(6)
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KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
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(7)
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
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NOW THIS DEED WITNESSES
as follows:
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1.
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DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 2 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
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(a)
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words denoting the plural number include the singular and vice versa;
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(b)
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words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
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(c)
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references to Clauses are references to clauses of this Deed;
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(d)
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the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
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(e)
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references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
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(f)
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references to any party include its successors, transferees and assignees.
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The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
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3.1
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If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
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3.2
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If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
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4.
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RESTRICTIONS ON ENFORCEMENT
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4.1
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Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
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(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
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(b)
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it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
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PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
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(i)
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filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
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(ii)
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from demanding payment of any of the Term Loan Indebtedness; or
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(iii)
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supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
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but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
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4.2
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Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
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8
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4.3
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Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
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5.1
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Enforcement Instructions
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(a)
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Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
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(b)
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After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
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(c)
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Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
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(d)
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After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
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(e)
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Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
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If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
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5.4
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Manner of enforcement
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If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
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5.5
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Exercise of voting rights
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(a)
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Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
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(b)
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The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
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To the
extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the
Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
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5.8
|
Certificates in relation to ECF Indebtedness
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Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
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5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
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(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
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(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
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7.
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APPLICATION OF PROCEEDS
|
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7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
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(a)
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in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
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(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
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(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
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(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
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(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
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|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The
provisions of this Deed will not be affected by an act, omission, matter or thing which, but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without
limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
15
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
16
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of Contracts
”).
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The ECF 2 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of Contracts
”).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
|
From:
|
[
Acceding Creditor/Agent
]
|
THIS
UNDERTAKING is made on [
date
] by [
insert full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [•] between
KfW IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the Jewel Lenders, Breakaway Two, Ltd. as Debtor, KfW
IPEX-Bank GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the
Intercreditor Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In
consideration of the Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes of the Intercreditor Deed, the Acceding
[
Creditor
/ Agent] confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
] and undertakes to perform all the
obligations expressed in the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be bound by all the provisions of the
Intercreditor Deed, as if it had been an original party to the Intercreditor Deed.
This Undertaking and any non-contractual obligations
arising out of or in connection with it are governed by English law.
THIS UNDERTAKING
has been entered into on the date stated above.
Acceding [
Creditor
/ Agent]
|
|
|
|
|
[EXECUTED
as a
DEED]
[
insert full name of Acceding Creditor / Agent
]
|
|
|
|
|
By:
|
|
|
|
|
|
|
Address:
|
|
|
|
Fax:
|
|
|
21
|
|
|
Accepted by the Collateral Agent
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
|
Date:
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian
Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
23
SIGNATORIES
THE ECF FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
24
THE JADE FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
|
|
THE JEWEL FACILITY AGENT
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK GMBH
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
THE ORIGINAL ECF LENDERS
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
NORDEA BANK NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
THE ORIGINAL JADE LENDERS
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK GMBH
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
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|
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Director
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Executed as a deed by
NORDEA BANK NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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THE ORIGINAL JEWEL LENDERS
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Executed as a deed by
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
DNB NOR BANK ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
KFW IPEX-BANK GMBH
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
NORDEA BANK NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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THE DEBTOR
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Signed as a deed on behalf of
BREAKAWAY TWO, LTD.
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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THE COLLATERAL AGENT
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Executed as a deed by
KFW IPEX-BANK GMBH
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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EXHIBIT N
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THE DELEGATE COLLATERAL AGENT
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Executed as a deed by
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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EXHIBIT O
Dated [
—
] 2010
HULL NO. S. 692
FORM OF
ASSIGNMENT OF MANAGEMENT AGREEMENTS
between
BREAKAWAY TWO, LTD.
as Borrower
and
KFW
IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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COVENANT TO PAY
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4
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3.
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LEGAL ASSIGNMENT
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4
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4.
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THE CONTRACT
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5
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5.
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CONTINUING SECURITY
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6
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6.
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REPRESENTATIONS AND WARRANTIES
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8
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7.
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UNDERTAKINGS
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10
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8.
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FURTHER ASSURANCE
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10
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9.
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ENFORCEMENT OF SECURITY
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11
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10.
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RECEIVERS
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12
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11.
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APPLICATION OF PROCEEDS
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12
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12.
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POWER OF ATTORNEY
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12
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13.
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RELEASE OF THE SECURITY
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12
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14.
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PAYMENTS
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13
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15.
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WAIVERS AND REMEDIES
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13
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16.
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ADDITIONAL PROVISIONS
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13
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17.
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ASSIGNMENT
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15
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18.
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NOTICES
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15
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19.
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GOVERNING LAW
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16
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20.
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COUNTERPARTS AND EFFECTIVENESS
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17
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SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
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18
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SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
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21
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SCHEDULE 3 FORM OF MANAGEMENT AGREEMENT
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23
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White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”); and
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(2)
|
KFW IPEX-BANK GMBH,
as collateral agent for and on behalf of the Secured Creditors (the “
Collateral Agent
”, which expression includes any
person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
|
The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
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(C)
|
The Borrower and the Collateral Agent intend this Assignment to take effect as a deed.
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(D)
|
The Collateral Agent holds the benefit of this Assignment on trust for itself for the Secured Creditors on the terms of the Credit Agreement and the Security Trust
Deed.
|
1. INTERPRETATION
1.1
Definitions
In this Assignment the following terms have the
meanings given to them in this Clause.
“
Acknowledgment of Assignment
” means a duly completed acknowledgement
of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Collateral Agent.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit Agreement.
“
Assigned Rights
” means the Borrower’s rights, title, interest and benefits in, to and in respect of the Management
Agreements.
“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the date hereof
between,
inter alia
, the Parent, the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document
Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of
Default” as defined in the Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or
otherwise, whether actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Management Agreements
” means any agreements substantially in the form of Schedule 3 (
Form of Management Agreement
) or otherwise reasonably acceptable to the Facility Agent (as
modified, supplemented or amended from time to time), entered into by the Borrower with the Manager or such other commercial manager and/or a technical manager with respect to the management of the Vessel, in each case which manager shall be
reasonably acceptable to the Facility Agent (it being understood that NCL (Bahamas) Ltd. is acceptable).
“
Manager
” means the company providing commercial and technical management and crewing services for the Vessel pursuant to
the Management Agreements, which is presently contemplated to be NCL (Bahamas) Ltd., a company organised and existing under the laws of Bermuda.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice of Assignment
) or in such other form as may be approved by the
Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the Borrower and/or
the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the
respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Assignment, pursuant to
any statute, by a court or otherwise) of any of the Assigned Rights.
“
Secured Creditors
” means the Lender
Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other
Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
2
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(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
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(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent obligations for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) .
|
“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
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1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
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(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
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(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
3
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
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|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
The
Borrower agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Collateral Agent.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured
Obligations.
4
|
3.2
|
Non-Assignable Rights
|
The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to each Manager under each of the Management Agreements as of the date hereof
(if any), a Notice of Assignment and if the Collateral Agent so requests the Borrower shall countersign such Notice of Assignment.
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|
(b)
|
As soon as practicable after the execution of any Management Agreement entered into after the date of this Assignment, the Borrower shall deliver to each Manager, a
Notice of Assignment in respect of such Management Agreement.
|
|
3.4
|
Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after it receives a Notice of Assignment, the Manager shall deliver to the Collateral Agent an Acknowledgment
of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Management Agreements
|
The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
(i)
|
during the continuance of an Event of Default, receive any sum from time to time payable to the Borrower under or in respect of the Management Agreements;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of any Management Agreement other than any waiver, amendment or supplement
(i) advised by the Borrower’s tax counsel, (ii) of a technical nature or (iii) deemed necessary by the parties to the Management Agreement to reflect the prevailing circumstances, provided that in each case, the prior written
consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the
|
5
|
|
Security or the Assigned Rights or (y) adversely affects the ability of the Borrower to perform its obligations under the Credit Documents;
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(iii)
|
terminate, or allow to be terminated, any Management Agreement unless replaced by a Management Agreement or Management Agreements, as the case may be, reasonably
acceptable to the Facility Agent; or
|
|
|
(iv)
|
assign or charge any Management Agreement or any of the Assigned Rights.
|
|
4.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Management Agreements and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with the Management Agreements which are necessary to
preserve, protect and enforce the interests of the Collateral Agent in the Management Agreements.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Management Agreements or any of the Assigned Rights, or following the occurrence and during the continuation of an Event of Default
makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
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|
|
(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the Collateral
Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
6
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
7
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Borrower acknowledges that the Collateral Agent has entered
into this Assignment in reliance on those representations and warranties.
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be
8
filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit
Agreement, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Credit Agreement, no person other than the Borrower has any legal or
beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement or this Assignment it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise, the benefit of all or any of
the Assigned Rights.
The terms
of the Management Agreements do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
9
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Borrower
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Borrower shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
The Borrower
shall provide the Collateral Agent with such reports and other information regarding the Management Agreements as the Collateral Agent may from time to time reasonably request.
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Management Agreements in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and
shall not commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Collateral Agent until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Management Agreements to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have
a material adverse effect on the value of such Management Agreement.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider
10
desirable to enable the Collateral Agent to perfect, preserve or protect the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this
Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all such notices and directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times
and in such manner as it thinks fit.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal
in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
11
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Borrower.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
11.
|
APPLICATION OF PROCEEDS
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the
discharge of the Secured Obligations in accordance with the provisions of the Credit Agreement.
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
12
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Borrower shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or
13
administration of the person by whom such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be
discharged only to the extent that on the Business Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified
currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified
currency, the Collateral Agent agrees to remit such excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
14
|
17.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit
Agreement.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deed.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com hflanders@ncl.com
with copies to:
15
Apollo Management, L.P.
9 West 57
th
Street New York,
New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Borrower agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Borrower to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute
relating to the existence, validity or termination of this Assignment or any non-
|
16
|
|
contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most appropriate and
convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented from taking
proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower and the Collateral Agent.
17
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Borrower
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Borrower has assigned to the Collateral Agent a first priority assignment of all of its rights, title, interests and benefits in, to or in respect of the management agreement dated [
—
] between the
Borrower and you, as manager in relation to the provision of commercial and technical management and crewing services for the passenger cruise ship (the “
Ship
”) with provisional hull number 692 (the “
Management
Agreement
”).
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, the Parent, the
Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Collateral Agent, all payments to be made to the Borrower under or arising from the Management Agreement should be made to the Collateral Agent or to its order as it may specify in
writing from time to time;
|
|
(b)
|
following an Event of Default, all remedies of the Borrower provided for in the Management Agreement or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Management Agreement shall be exercisable by the Collateral Agent;
|
18
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Management Agreement are assigned to the Collateral
Agent;
|
|
(e)
|
no waiver or amendment of or supplement to the terms of the Management Agreement may be made other than any waiver, amendment or supplement (i) advised by the
Borrower’s tax counsel, (ii) of a technical nature or (iii) deemed necessary by the parties to the Management Agreement to reflect the prevailing circumstances to reflect the prevailing circumstances, provided that in each case, the
prior written consent of the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely
affects the ability of the Borrower to perform its obligations under the Credit Documents (as defined in the Credit Agreement);
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Management Agreement unless replaced by a Management Agreement or Management Agreements, as the
case may be, reasonably satisfactory to the Facility Agent (as defined in the Credit Agreement);
|
|
(g)
|
the Collateral Agent has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Management Agreement except that to the extent
that the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Borrower)
(including, without limitation, making a demand under the Management Agreement) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has
occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Borrower could do in relation to the Management Agreement. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Management Agreement without further authority or enquiry by you from the Borrower; and
|
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Management Agreement and the Collateral Agent is under no obligation of any kind under
the Management Agreement nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Collateral Agent with such information relating to the Management Agreement as it may from
time to time reasonably request and to send copies of any notices issued by you under the Management Agreement which have had or would reasonably be expected to have a material adverse effect on the value of the Management Agreement or the Ship, to
the Collateral Agent as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon
termination of the Assignment (as notified to you by the Collateral Agent).
19
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed
copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
20
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[To be printed only on copy of the
Notice of Assignment given]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that we have not received notice of any previous
assignments or charges of or over any of the rights, title, interests and benefits in, to or in respect of the Management Agreement and that we will comply with the terms of the Notice.
We further agree and confirm that:
|
(a)
|
if an Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing, we covenant and agree with the Collateral Agent that the Collateral
Agent shall have the right to terminate the Management Agreement, as the Collateral Agent determines in its sole discretion, upon not fewer than three (3) Business Days prior written notice setting forth the effective date of such termination,
without such termination giving rise to any claim by us as Manager, other than for services already rendered by us as Manager as of the effective date of such termination;
|
|
(b)
|
with respect to the Ship, we agree that any lien arising in our favour under the Management Agreement is subject and subordinated in all respects to the lien of the
first priority mortgage and the deed of covenants in respect of the Ship granted by the Borrower in favour of the Collateral Agent (the “
Vessel Mortgage
”), and, at the option of the Collateral Agent, foreclosure (or any similar
action taken by the Collateral Agent) under the Vessel Mortgage shall terminate the Management Agreement and such liens and divest us and our submanagers of all right, title and interest in and to the Ship;
|
|
(c)
|
we will not enter into any sub-management agreement or contract out our obligations under the Management Agreement to any person without the Collateral
Agent’s prior written consent, unless (i) the sub-manager executes a consent substantially identical
|
21
|
|
to this consent and (ii) the sub-manager is as competent to render management services as we are; and
|
|
(d)
|
we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed
thereto in the Notice or the Assignment, as applicable) with respect to the Management Agreement.
|
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
[Manager]
as
Manager
|
|
|
|
By:
|
|
|
|
Date:
|
22
SCHEDULE 3
FORM OF MANAGEMENT AGREEMENT
[TO BE INSERTED]
23
SIGNATORIES
|
|
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY TWO, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
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|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
24
EXHIBIT P
Dated [
—
] 2010
HULL NO. S. 692
FORM OF ECF 2 SECURITY TRUST DEED
between
KFW
IPEX-BANK GMBH
as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate Collateral Agent
KFW IPEX-BANK GMBH
as Facility Agent
BREAKAWAY TWO, LTD.
as Company
NCL CORPORATION LTD.
as Parent
and
OTHERS
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
|
|
DEFINITIONS AND INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
|
5
|
|
|
3.
|
|
APPLICATION OF PROCEEDS
|
|
|
6
|
|
|
4.
|
|
SECURED CREDITORS’ UNDERTAKINGS
|
|
|
8
|
|
|
5.
|
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
|
9
|
|
|
6.
|
|
AGENT’S RIGHTS AND DUTIES
|
|
|
10
|
|
|
7.
|
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
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17
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8.
|
|
CHANGE OF PARTIES
|
|
|
19
|
|
|
9.
|
|
FEES AND EXPENSES
|
|
|
20
|
|
|
10.
|
|
AMENDMENTS AND RELEASES
|
|
|
21
|
|
|
11.
|
|
TERMINATION OF THE TRUSTS
|
|
|
22
|
|
|
12.
|
|
REMEDIES AND WAIVERS
|
|
|
22
|
|
|
13.
|
|
ADDITIONAL PROVISIONS
|
|
|
22
|
|
|
14.
|
|
NOTICES
|
|
|
24
|
|
|
15.
|
|
GOVERNING LAW AND JURISDICTION
|
|
|
26
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|
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16.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
26
|
|
|
SCHEDULE 1 ORIGINAL SECURED CREDITORS
|
|
|
28
|
|
|
SCHEDULE 2 FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
|
|
29
|
|
THIS DEED
is made on [
—
] 2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Company
”);
|
|
(2)
|
NCL CORPORATION LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”
and together with the Company, the “
Credit Parties
”);
|
|
(3)
|
The financial institutions listed in Schedule 1 as Secured Creditors (together with the Collateral Agent and the Delegate Collateral Agent, the “
Original
Secured Creditors
”);
|
|
(4)
|
KFW IPEX-BANK GMBH
as facility agent for the Lender Creditors (the “
Facility Agent
”);
|
|
(5)
|
KFW IPEX-BANK GMBH
as trustee for the Secured Creditors (the “
Collateral Agent
”, which expression includes any additional or successor
Collateral Agent appointed pursuant to and in accordance with the terms of this Deed); and
|
|
(6)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as trustee for the Secured Creditors (the “
Delegate Collateral Agent
”, which expression includes any
additional or successor Delegate Collateral Agent appointed pursuant to and in accordance with the terms of this Deed).
|
RECITALS:
|
(A)
|
The Lenders are willing to make certain credit facilities available to the Company on the terms and subject to the conditions set out in the Credit Agreement, one of
those conditions being that the Company enters into this Deed.
|
|
(B)
|
The Collateral Agent holds the Transaction Security (excluding the Vessel 2 Assignment of KfW Refund Guarantees) on trust for itself and the other Secured Creditors on
the terms of this Deed.
|
|
(C)
|
The Delegate Collateral Agent holds the Vessel 2 Assignment of KfW Refund Guarantees on trust for itself and the other Secured Creditors on the terms of this Deed.
|
IT IS AGREED
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this Deed
the following terms have the meanings given to them in this Clause 1.1.
“
Agents
” means the Collateral Agent
and the Delegate Collateral Agent.
“
Credit Agreement
” means the €529,846,154 credit agreement made
between the Parent, the Company, the Lenders and others dated [
—
].
“
Credit Document Obligations
” has the meaning given in the Credit Agreement.
“
Delegate
” means any delegate, agent or attorney appointed by the Collateral Agent, pursuant to and in accordance with
the terms of this Deed.
“
Discharge Date
” means the date on which all the Secured Obligations have been fully
discharged and none of the Lender Creditors is under any obligation (whether actual or contingent, other than (i) contingent obligations for which no claim has been made and (ii) indemnities, expense reimbursements or any other contingent
liabilities that expressly survive the termination of the Credit Agreement) to make advances or provide other financial accommodation to any of the Credit Parties under the Credit Documents.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the
extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each Lender or affiliate thereof
that may at any time and from time to time enter into one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 8.3 (
New Hedging Creditor
), even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender’s or affiliate’s successors and assigns, if any.
“
ECF Interest Rate Protection Agreement
” means Interest Rate Protection Agreement as defined in the Credit Agreement.
“
ECF Loan Collateral
” means the Collateral as defined in the Credit Agreement.
“
ECF Other Hedging Agreement
” means Other Hedging Agreement as defined in the Credit Agreement.
“
Other Obligations
” has the meaning given in the Credit Agreement.
“
Party
” means a party to this Deed.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Deed or any statute, by a court or otherwise) of all or any of the Trust Property and the
Trust Property Delegated and shall, where permitted by law, include an administrative receiver.
“
Secured
Creditors
” means (a) the Original Secured Creditors, (b) any Receiver or Delegate, (c) any additional or successor Agents appointed pursuant to and in accordance with the terms of this Deed, (d) any ECF Hedging Creditor
that has acceded to this Deed by delivery of a Secured Creditor Accession Undertaking to the Collateral Agent, (e) any successor Facility Agent or permitted assignee, permitted transferee of a Lender or permitted transferee of a ECF Hedging
Creditor that has acceded to this Deed by (i) delivery of a Secured Creditor Accession Undertaking to the Collateral Agent or (ii) delivery of a Transfer Certificate or Assignment Agreement to the Facility Agent and (f) any permitted
assignee of a Lender by way of Security, including without limitation, KfW in connection with the KfW Refinancing.
2
“
Secured Creditor Accession Undertaking
” means an undertaking substantially
in the form set out in Schedule 2 (
Form of Secured Creditor Accession Undertaking
) of this Deed.
“
Secured
Obligations
” means the Credit Document Obligations and the Other Obligations.
“
Security
” means a
mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Shared
Security Documents.
“
Shared Security Documents
” means:
|
|
(a)
|
the Vessel 2 Assignment of Contracts; and
|
|
|
(b)
|
the Vessel 2 Assignment of KfW Refund Guarantees.
|
“
Transaction Security
” means the security created or expressed to be created in favour of the relevant Agent pursuant to the Vessel 2 Assignment of Contracts, the Vessel 2 Assignment of
KfW Refund Guarantees, the Assignment of Management Agreement, the Assignments of Earnings and the Assignments of Insurances and any other agreement which is governed by the laws of England and Wales and which creates or purports to create Security
in favour of the Secured Creditors.
“
Trust Property
” means all rights, interests, benefits and other property
comprised in the Transaction Security (excluding the Vessel 2 Assignment of KfW Refund Guarantees) and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Collateral Agent under, pursuant to or in connection with this Deed or any Credit Document to which the Collateral Agent is a party;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Collateral Agent (other than any made or granted solely for its own
benefit) made or granted in or pursuant to any of the Credit Documents to which the Collateral Agent is a party;
|
|
|
(c)
|
any sum which is received or recovered by the Collateral Agent under, pursuant to or in connection with any of the Credit Documents or the exercise of any of the
Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Collateral Agent upon trust on the terms of this Deed or any of the Credit Documents to
which the Collateral Agent is a party; and
|
3
|
|
(d)
|
all income and other sums at any time received or receivable by the Collateral Agent in respect of the other Trust Property or any part thereof.
|
“
Trust Property Delegated
” means all rights, interests, benefits and other property comprised
in the Vessel 2 Assignment of KfW Refund Guarantees and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Delegate Collateral Agent under, pursuant to or in connection with this Deed or the Vessel 2 Assignment of KfW Refund Guarantees;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Delegate Collateral Agent (other than any made or granted solely for
its own benefit) made or granted in or pursuant to any of the Vessel 2 Assignment of KfW Refund Guarantees;
|
|
|
(c)
|
any sum which is received or recovered by the Delegate Collateral Agent under, pursuant to or in connection with any of the Vessel 2 Assignment of KfW Refund Guarantees
or the exercise of any of the Delegate Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Delegate Collateral Agent upon trust on the terms
of this Deed or any the Vessel 2 Assignment of KfW Refund Guarantees; and
|
|
|
(d)
|
all income and other sums at any time received or receivable by the Delegate Collateral Agent in respect of the other Trust Property Delegated or any part thereof.
|
“
Trustee Acts
” means the Trustee Act 1925 and the Trustee Act 2000.
“
Vessel 2 Assignment of Contracts
” means the assignment of contracts dated on or about the date of this Deed and made
between the Company and the Collateral Agent.
“
Vessel 2 Assignment of KfW Refund Guarantees
” means the
assignment of refund guarantees dated on or about the date of this Deed and made between the Company and the Delegate Collateral Agent relating to certain Refund Guarantees issued by KfW IPEX-Bank GmbH.
Unless
this Deed provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Deed.
|
1.3
|
References to Agreements
|
Unless otherwise stated, any reference in this Deed to any agreement or document (including any reference to this Deed or any other Credit
Document or to any agreement or document entered into pursuant to or in accordance with such agreement or document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, restated, varied, novated or supplemented from time to time; and
|
4
|
|
(b)
|
any agreement or document whereby such agreement or document is so amended, restated, varied, novated or supplemented or which is entered into pursuant to or in
accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Deed to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
|
|
(a)
|
A person which is not a party to this Deed (a “
third party
”) shall have no rights to enforce the provisions of this Deed save for those rights it would
have had if the Contracts (Rights of Third Parties) Act 1999 had not come into effect provided that each of Clause 5.1 (
Credit Parties’ Indemnity to Agents
), Clause 9.1 (
Transaction and Enforcement Expenses
) and Clause 13.3
(
Currency Indemnity
) shall be enforceable by any third party referred to in such clause as if such third party were a party to this Deed.
|
|
|
(b)
|
The Parties to this Deed may vary or rescind this Deed without the consent of any third party.
|
|
1.7
|
Clause and Schedule Headings
|
|
|
(a)
|
Unless otherwise stated, any reference in this Deed to a Clause or a Schedule shall be construed as a reference to a clause of or a schedule to this Deed.
|
|
|
(b)
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Deed.
|
|
2.
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
2.1
|
Declaration of Trust by Collateral Agent
|
To the extent the Trust Property is not transferred, charged or granted to the Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of Clause 2.3 (
Non-Trust
Jurisdictions
), the Collateral Agent declares itself trustee of the Trust Property to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the terms and subject to the conditions set out in this
Deed.
5
|
2.2
|
Declaration of Trust by Delegate Collateral Agent
|
To the extent the Trust Property Delegated is not transferred, charged or granted to the Delegate Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of
Clause 2.3 (
Non-Trust Jurisdictions
), the Delegate Collateral Agent declares itself trustee of the Trust Property Delegated to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the
terms and subject to the conditions set out in this Deed.
|
2.3
|
Non-Trust Jurisdictions
|
It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed
to be created by this Deed, the relationship of the Secured Creditors to the Agents shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Deed shall have
full force and effect between the Parties.
Each
Credit Party hereby covenants with the Agents as trustees for the Secured Creditors that on demand by either of the Agents such Credit Party shall discharge all obligations which are then due and payable and which such Credit Party may at any time
owe to the Agents (whether for its own account or as trustee for the Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they
act) under or pursuant to the Credit Documents including any liability in respect of any further advances made under the Credit Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or as surety or in some other capacity) and each Credit Party shall pay to the Agents when due and payable every sum at any time owing, due or incurred by such Credit Party to the Agents (whether for its own account or as trustee for the
Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they act) in respect of any such liabilities.
|
3.
|
APPLICATION OF PROCEEDS
|
All
moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral Agent pursuant to the Vessel 2 Assignment of KfW Refund Guarantees) shall be applied by the
Collateral Agent (a) with respect to the Shared Security only (to the extent that the Intercreditor Agreement is operative), in accordance with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Intercreditor
Agreement and (b) with respect to the Shared Security (to the extent that the Intercreditor Agreement is inoperative) and any other Security to which this Deed relates, in accordance with the order of priority set out in Section 4.05
(
Application of Proceeds
) of the Credit Agreement.
6
|
3.2
|
Investment of Proceeds
|
|
|
(a)
|
Pending its distribution under Clause 3.1 (
Order of Application
) and without responsibility for any loss or any reduction in return which may result from its so
doing, the Collateral Agent may credit any sum received, recovered or held by it in respect of the Trust Property and/or the Trust Property Delegated to such suspense or other account as the Collateral Agent thinks fit or invest or place on deposit
such sum in the name of or under the control of the Collateral Agent in any investment for the time being authorised by English law for the investment by trustees of trust moneys or with such bank or financial institution (including the Collateral
Agent) as the Collateral Agent may think fit.
|
|
|
(b)
|
The Collateral Agent may at any time in its absolute discretion vary, exchange, transfer or transpose any such investments or deposits for or into other such
investments or deposits without being under any obligation or duty to diversify the same. Any investment made by the Collateral Agent may, at its discretion, be made or retained in the name of a nominee.
|
In
order to apply any sum held or received by the Collateral Agent or a Receiver in or towards payment of the Secured Obligations, the Collateral Agent or such Receiver may purchase an amount in another currency and the rate of exchange to be used
shall be that at which, at such time as it considers appropriate, the Collateral Agent or such Receiver is able to effect such purchase.
The
Collateral Agent shall be entitled to set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any
distribution or payment made by it under this Deed, and to pay all taxes which may be assessed against it in respect of any of the Trust Property or Trust Property Delegated, as applicable, or as a consequence of performing its duties, or by virtue
of its acting in its capacity as Collateral Agent under any of the Credit Documents or otherwise (other than in connection with its remuneration for performing its duties under this Deed).
|
3.5
|
Discharge of Secured Obligations
|
|
|
(a)
|
Any payment to be made in respect of the Secured Obligations by the Collateral Agent pursuant to (i) paragraph (c) of Clause 7.1 (
Application of
Proceeds
) of the Intercreditor Agreement or (ii) paragraph (ii) of Section 4.05 (
Application of Proceeds
) of the Credit Agreement shall be made to the Facility Agent (on behalf of the Lenders and the other Secured Creditors
(to the extent applicable)) and any payment so made shall to the extent of such payment be a good discharge to the Agents.
|
|
|
(b)
|
The Credit Parties hereby agree that any sums due in respect of the Secured Obligations to any Secured Creditor shall only be discharged to the extent that such Secured
Creditor has received such sums in the currency in which such sums are due under the Credit Documents.
|
7
|
|
(a)
|
If any Secured Creditor has received an amount as a result of the enforcement of the Transaction Security and the Collateral Agent and/or the Delegate Collateral Agent
is subsequently required to pay an amount equal to that amount (a “
Clawback Amount
”) to a liquidator (or any other party) whether pursuant to a court order or otherwise such Secured Creditor will promptly on the request of the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) pay an amount equal to such Clawback Amount to the Collateral Agent and/or the Delegate Collateral Agent (as applicable) for payment to the liquidator (or such other party).
|
|
|
(b)
|
Each Secured Creditor that has received a Clawback Amount shall indemnify the relevant Agent against any and all costs, claims, losses, expenses (including legal fees)
and liabilities together with any VAT thereon which the Collateral Agent and/or the Delegate Collateral Agent (as applicable) may incur with respect to that Clawback Amount otherwise than by reason of the Agent’s own gross negligence or wilful
misconduct.
|
|
4.
|
SECURED CREDITORS’ UNDERTAKINGS
|
Each Secured Creditor gives the undertakings set out in this Clause 4 to each of the other Secured Creditors and acknowledges that the Agents entered into this Deed in reliance on those undertakings.
|
4.1
|
Secured Creditors’ Information
|
The Secured Creditors shall furnish to the Facility Agent, for transmission to the Collateral Agent and/or the Delegate Collateral Agent, such information as the Collateral Agent and/or the Delegate
Collateral Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Collateral Agent and/or the Delegate Collateral Agent to perform its functions as trustee.
Each
of the Collateral Agent and the Delegate Collateral Agent alone, in their respective capacities, to the exclusion of the Secured Creditors, shall have power to enforce or have recourse to the Transaction Security and to exercise its rights and
powers pursuant to the Credit Documents.
Without prejudice to any of the provisions of any other Credit Document and to the extent that the Company does not do so on demand or is
not obliged to do so, each Secured Creditor that is a Lender hereby severally agrees to indemnify, rateably in accordance with such Lender’s Commitment, the Collateral Agent and/or the Delegate Collateral Agent (as applicable) (and every
Receiver and Delegate) on demand from and against any action, charge, claim, cost, damage, demand, expense (including legal fees), liability or loss which may be brought, made or preferred
8
against or suffered, sustained or incurred by the Collateral Agent and/or the Delegate Collateral Agent (as applicable) in complying with any instructions from any of the Secured Creditors or
otherwise sustained or incurred by the Collateral Agent and/or the Delegate Collateral Agent (as applicable) or any Receiver or Delegate in connection with this Deed or any Credit Document except to the extent that the liability or loss arises
directly from the Collateral Agent and/or the Delegate Collateral Agent (as applicable)’s (or, as the case may be, the Receiver’s or the Delegate’s) gross negligence or wilful misconduct.
|
4.4
|
Assignments and Transfers
|
Each Secured Creditor agrees with the Agents that it shall not assign or transfer any of its rights, benefits and/or obligations under the
Credit Agreement unless the person to whom such assignment or transfer is made shall have acceded to this Deed by the delivery to the Agents of a duly completed Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement so
as to ensure that such person shall be bound by the terms and conditions of this Deed as a Secured Creditor. For the avoidance of doubt, this provision shall not apply to a permitted assignment by way of security including, without limitation,
pursuant to the KfW Refinancing.
|
5.
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
5.1
|
Credit Parties’ Indemnity to Agents
|
The Credit Parties shall jointly and severally indemnify and hold harmless the Collateral Agent and the Delegate Collateral Agent and every Receiver and Delegate (“
indemnified parties
”)
on demand from and against any and all costs, claims, losses, expenses (including legal fees) and liabilities (together with any applicable VAT), incurred by any of them in relation to or arising out of:
|
|
(a)
|
the preservation, exercise or enforcement of the Transaction Security;
|
|
|
(b)
|
the exercise of any of the rights, powers, discretions and remedies vested in any of the indemnified parties by the Credit Documents or by law;
|
|
|
(c)
|
any default by any Credit Party in the performance of any of the obligations expressed to be assumed by it in the Credit Documents; or
|
|
|
(d)
|
otherwise in relation to any of the Transaction Security or the performance of the terms of this Deed.
|
The Collateral Agent and the Delegate Collateral Agent may, in priority to any payment to the Secured Creditors and on its own behalf or
on behalf of the other indemnified parties, indemnify itself or such other indemnified parties out of the Trust Property and Trust Property Delegated respectively and shall have a lien on the Trust Property and Trust Property Delegated respectively
for all moneys payable under this Clause 5.1.
To the
extent that a Secured Creditor is required to indemnify the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
) as a
9
result of any action which a Credit Party is required to take but does not, the relevant Credit Party agrees to indemnify each such Secured Creditor on demand against any amount it has paid to
the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
).
|
5.3
|
Credit Parties’ Waiver
|
Each of the Credit Parties hereby unconditionally waives, to the extent permitted under applicable law any and all rights it may have to require that the Transaction Security be enforced in any particular
order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security, which is capable of being applied in or towards discharge of any of the Secured
Obligations is so applied.
|
5.4
|
Sums Received by Credit Parties
|
If any of the Credit Parties receives any sum which, pursuant to any of the Credit Documents, should have been paid to the Collateral Agent and/or the Delegate Collateral Agent, that sum shall be held by
that Credit Party for and to the order of the Secured Creditors and shall as soon as practicable be paid to the Collateral Agent for application in accordance with Clause 3.1 (
Order of Application
)).
|
6.
|
AGENT’S RIGHTS AND DUTIES
|
|
6.1
|
Powers and Remuneration
|
|
|
(a)
|
The Agents shall have such rights, powers, authorities and discretions as are (i) conferred on trustees by the Trustee Acts and (ii) by way of supplement to
the Trustee Acts as provided for in this Deed and the Credit Documents.
|
|
|
(b)
|
Between itself and the other Parties, the Collateral Agent shall have full power to determine all questions and doubts arising in relation to any of the provisions of
this Deed or any Credit Document and any such determination shall in the absence of manifest error, be conclusive and shall bind the Agents and the other Parties.
|
|
|
(c)
|
The Agents shall be entitled to such remuneration as it may from time to time agree with the Company with the approval of the Facility Agent.
|
|
6.2
|
Instructions for Agents to Act
|
The Agents shall:
|
|
(a)
|
be entitled, in their absolute discretion, to refrain from taking any (or any further) action or exercising any of the Agents’ rights under or in respect of this
Deed or any Credit Document until it has received instructions from the Facility Agent, as to whether (and/or the way in which) such action, right, power, authority or discretion is to be taken or exercised;
|
10
|
|
(b)
|
except as otherwise provided in this Deed, act in accordance with any instructions given to it by the Facility Agent and shall be entitled to assume that (i) any
instructions received by it from the Facility Agent are duly given by the Facility Agent itself or on behalf of the requisite Lenders and/or other Secured Creditors (if applicable), (ii) all applicable conditions under the Credit Documents for
taking any action it is directed to take have been satisfied and (iii) unless it has received actual notice of their revocation, that any instructions or directions given by the Facility Agent have not been revoked;
|
|
|
(c)
|
be entitled to request instructions or clarification from the Facility Agent as to whether, and in what manner, it should exercise or refrain from exercising its
rights, powers and discretions under this Deed and the Agents may refrain from acting unless and until it has received such instructions or clarification;
|
|
|
(d)
|
be entitled to refrain from acting in accordance with the instructions of the Facility Agent or any other person (including bringing any legal action or proceeding
arising out of or in connection with the Credit Documents) until it has received such indemnification and/or security as it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, expenses, losses
and liabilities which it may incur in taking such action or bringing such legal action or proceedings; and
|
|
|
(e)
|
be entitled to carry out all dealings with the Lenders and/or other Secured Creditors (if applicable) through the Facility Agent and may give to the Facility Agent any
notice or other communication required to be given by the Agents to the Lenders and/or other Secured Creditors (if applicable).
|
|
6.3
|
Action to Protect or Enforce Transaction Security
|
Subject to the provisions of this Clause 6:
|
|
(a)
|
the Agents may, in the absence of any instructions from the Facility Agent to the contrary, take such action in the exercise of any of its duties under the Credit
Documents and this Deed which in its absolute discretion it considers appropriate; and
|
|
|
(b)
|
at any time after receipt by the Agents of notice from the Facility Agent informing the Agents that the Transaction Security has become enforceable and directing the
Agents to exercise all or any of its rights, remedies, powers or discretions under any of the Credit Documents or this Deed, the Agents shall take such action as in its absolute discretion it thinks fit to enforce the Transaction Security.
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6.4
|
Agents’ Rights and Discretions
|
The Agents may:
|
|
(i)
|
any communication, certificate, legal opinion or other document believed by it to be genuine and correct and to have been signed by, or with the authority of, the
proper person;
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11
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|
(ii)
|
any statement made by a director, officer, partner or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within
his power to verify; and
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|
|
(iii)
|
a certificate signed by any one or more persons which, or each of which, is believed by it to be a director or other duly authorised officer of the relevant Party to
the effect that any particular dealing, transaction, step or thing is, in the opinion of the person so certifying, suitable or expedient or as to any other fact or matter upon which the Agents may require to be satisfied and shall not be responsible
for any loss that may be occasioned by its relying on any such certificate;
|
|
|
(b)
|
obtain and pay for such legal or other expert advice or services as it may consider necessary or desirable;
|
|
|
(c)
|
retain for its own benefit, without liability to account to any other person, any fee or other sum received by it for its own account;
|
|
|
(d)
|
in the case of the Collateral Agent only, exercise any of its rights, powers and discretions and perform any of its obligations under this Deed or any of the Credit
Documents through its employees or through paid or unpaid agents, which may be corporations, partnerships or individuals (whether or not lawyers or other professional persons). Any such agent shall be responsible for its own acts and omissions and
subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be responsible for any misconduct or omission on the part of, or be bound to supervise the proceedings or acts of, any such employee or agent (and any such agent
which is engaged in any profession or business shall be entitled to charge and be paid all usual fees, expenses and other charges for its services);
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|
|
(e)
|
in the case of the Collateral Agent only, at any time and from time to time delegate, whether by power of attorney or otherwise and upon such terms and conditions
(including the power to sub-delegate with the consent of the Collateral Agent) as the Collateral Agent may think fit, to any persons all or any of its rights, powers and discretions under this Deed or under any of the Credit Documents. Such delegate
or sub-delegate shall be responsible for its own acts and omissions and subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be in any way liable or responsible to any person for any loss or damage arising from any
act, default, omission or misconduct on the part of any such delegate or sub-delegate. Notwithstanding the above and for the avoidance of doubt, the Collateral Agent shall not be responsible for any acts or omissions, including, without limitation,
any acts or omissions caused by the gross negligence or wilful misconduct of the Delegate Collateral Agent;
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|
|
(f)
|
together with every Receiver, Delegate or other person appointed under this Deed or any of the Credit Documents, indemnify themselves out of the Trust Property and the
Trust Property Delegated against all proceedings, claims and demands which may be made or taken against it and all costs, charges, damages, expenses and liabilities which it may suffer or incur unless suffered or incurred by reason of its own gross
negligence or wilful misconduct; and
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12
|
|
(g)
|
unless it has, in its capacity as trustee for the Secured Creditors, received actual notice to the contrary, assume that (i) no Event of Default has occurred and
no Credit Party is in breach of or default under its obligations under any of the Credit Documents and (ii) any right, power, authority or discretion vested by any Credit Document in any person has not been exercised.
|
The Agents shall promptly inform the Facility Agent (and in the case of the Delegate Collateral Agent, inform the Collateral Agent) of:
|
|
(a)
|
the contents of any written notice or document received by it in its capacity as Collateral Agent and Delegate Collateral Agent from any Credit Party under any Credit
Document; and
|
|
|
(b)
|
the occurrence of any Event of Default or any default by a Credit Party in the due performance of or compliance with its obligations under any Credit Document of which
the Collateral Agent or Delegate Collateral Agent has received written notice from any other Party.
|
Notwithstanding anything to the contrary expressed or implied in any Credit Document, the Agents shall not:
|
|
(a)
|
be liable to anyone where it has acted reasonably and in good faith on the opinion or advice of or any information obtained from any lawyer, accountant, architect,
engineer, surveyor, broker, consultant, valuer or other expert (including any auditor), whether obtained by the Agents or otherwise whether or not the expert’s liability in respect thereof is limited by a monetary cap or otherwise and whether
or not any such opinion, advice or information contains some error or is not authentic;
|
|
|
(b)
|
be obliged to monitor or enquire as to whether or not an Event of Default has occurred and will not be deemed to have knowledge of the occurrence of an Event Default
unless it has actual knowledge or express notice thereof;
|
|
|
(c)
|
have any duty to (i) ensure that any payment or other financial benefit in respect of any of the Trust Property or the Trust Property Delegated is duly and
punctually paid, received or collected as and when the same becomes due and payable or (ii) to procure that the correct amounts (if any) are paid or received or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys
or other property paid, distributed, accrued or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise on, or in respect of or in substitution for any of the Trust Property or the Trust
Property Delegated;
|
|
|
(d)
|
unless required by law or ordered so to do by a court of competent jurisdiction, be required to (i) disclose to any Secured Creditor any credit or
other information (other than information in the Agents’ possession specifically concerning the Credit Documents) with respect to the financial
|
13
|
|
condition or affairs of any member of the Group or any of their related entities whether coming into its or any of its affiliates possession before or on the entry into this Deed or at any time
thereafter or (ii) request any certificates or other documents from any member of the Group unless specifically requested to do so by the Facility Agent in accordance with this Deed or any of the Credit Documents;
|
|
|
(e)
|
be bound to account to any other Secured Creditor for any sum or the profit element of any sum received by it for its own account;
|
|
|
(f)
|
be bound to disclose to any other person (including any Secured Creditor) (i) any confidential information or (ii) any other information if disclosure would
or might in its reasonable opinion constitute a breach of any law or be a breach of fiduciary duty;
|
|
|
(g)
|
be liable to any of the Secured Creditors for any action taken or omitted to be taken under or in connection with any of the Credit Documents unless caused by its
fraud, gross negligence or wilful misconduct;
|
|
|
(h)
|
be under any obligations other than those which are specifically provided for in the Credit Documents to which it is a party;
|
|
|
(i)
|
have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Credit Party; or
|
|
|
(j)
|
be obliged to take any action in relation to enforcing or perfecting any charge over any shares in a company registered or incorporated with unlimited liability.
|
|
6.7
|
Responsibility of Secured Creditors
|
It is understood and agreed by each Secured Creditor that at all times that Secured Creditor has itself been, and will continue to be, solely responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the Credit Documents including but not limited to:
|
|
(a)
|
the financial condition, creditworthiness, condition, affairs, status and nature of each of the Credit Parties;
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy and enforceability of each of the Credit Documents and the Transaction Security and any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(c)
|
whether that Secured Creditor has recourse, and the nature and extent of that recourse, against any Credit Party or any other person or any of their respective assets
under or in connection with the Credit Documents or the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
14
|
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by any person in connection with the Credit Documents or the transactions contemplated therein or
any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents; and
|
|
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Trust Property or the Trust Property Delegated, the priority of any of the
Transaction Security or the existence of any other Security affecting the Trust Property or the Trust Property Delegated,
|
and each Secured Creditor warrants to the Agents that it has not relied on and will not at any time rely on the Agents in respect of any of these matters.
|
6.8
|
No Responsibility to Perfect Security
|
The Agents shall not be liable for any omission or defect in, or any failure to preserve or perfect any or all of the Transaction Security including, without limitation, any failure to:
|
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Credit Party to any of the Trust Property or the Trust
Property Delegated;
|
|
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Credit
Documents or the Transaction Security;
|
|
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of any of the Credit Documents or of the Transaction Security;
|
|
|
(d)
|
take, or to require any of the Credit Parties to take, any steps to perfect its title to any of the Trust Property or the Trust Property Delegated or to render the
Transaction effective or to secure the creation of any ancillary security under the laws of any jurisdiction; or
|
|
|
(e)
|
require any further assurances in relation to any of the Transaction Security.
|
The Agents
shall not be under any obligation to insure any of the Trust Property or the Trust Property Delegated, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Credit
Documents. The Agents shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. Where the Agents are named on any insurance policy as an insured party, it shall not be
responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless any Secured
Creditor shall have requested it to do so in writing and the Agents shall have failed to do so within 14 days after receipt of that request.
15
|
|
(a)
|
Each of the Agents shall be at liberty to place (at the cost of the Credit Parties) any of the Credit Documents and any title deeds or other documents relating to the
Transaction Security in any safe custody selected by the Agents or with any financial institution, any company whose business includes the safe custody of documents or any firm of lawyers of good repute and the Agents shall not be responsible for,
or required to insure against, any loss incurred in connection with that deposit.
|
|
|
(b)
|
Each of the Agents may in its absolute discretion make any such arrangements as it thinks fit for allowing any Credit Party or its lawyers or auditors or other advisers
access to or possession of any title deeds and other documents relating to the Transaction Security.
|
|
|
(c)
|
The Agents shall not be responsible for any loss which may result arising out of any deposit, access, possession or other matter provided for in this Clause 6.10.
|
Each
of the Agents shall be entitled to accept without enquiry, and shall not be obliged to investigate, such evidence of right and title as any Credit Party may have to any of the Trust Property or the Trust Property Delegated and shall not be liable
for or bound to require any Credit Party to remedy any defect in its right or title.
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6.12
|
Refrain from Illegality
|
Each of the Agents may refrain from doing anything which in its opinion would or might be contrary to any law of any jurisdiction or any
directive or regulation binding on it which would or might otherwise render it liable to any person, and the Agents may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
|
6.13
|
Business with the Credit Parties
|
Each of the Agents may accept deposits from, lend money to or provide advisory or other services to and generally engage in any kind of banking or other business with any of the Credit Parties whether or
not it may or does lead to a conflict with the interests of any of the Secured Creditors and may do so without any obligation to account to or disclose any such arrangements to any person.
|
6.14
|
Agent Division Separate
|
In acting as trustee for the Secured Creditors, each of the Agents shall be regarded as acting through its trustee division which shall be
treated as a separate entity from any of its other divisions or departments and any information received by any other division or department of the relevant Agent may be treated as confidential and shall not be regarded as having been given to the
relevant Agent’s trustee division.
16
|
6.15
|
Exclusion of Liability
|
Neither the Agents nor any of their officers, employees or agents makes, or shall at any time be deemed to have made any representation or
warranty (express or implied) with regard to, nor shall it be responsible or liable to any person for:
|
|
(a)
|
the adequacy, accuracy or completeness of any representation, warranty, statement or information contained in this Deed or any Credit Document, notice, report or other
document, statement or information circulated, delivered or made to any Secured Creditor whether orally or otherwise and whether before, on or after the date of this Deed;
|
|
|
(b)
|
the execution, delivery, validity, legality, priority, ranking, adequacy, effectiveness, performance, enforceability or admissibility in evidence of this Deed or any
Credit Document or any other document referred to in paragraph (a) above or of any Transaction Security created thereby or any obligations imposed thereby or assumed thereunder or any other document, agreement or arrangement entered into, made
or executed in anticipation of, pursuant to or in connection therewith;
|
|
|
(c)
|
anything done or not done by it or any of them under or in connection with this Deed or the Credit Documents;
|
|
|
(d)
|
any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Credit Documents or the
Transaction Security or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise;
|
|
|
(e)
|
the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Credit Documents, the Transaction
Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection therewith; or
|
|
|
(f)
|
any shortfall which arises on the enforcement of the Transaction Security,
|
and each of the Secured Creditors agrees that it will not take any proceedings or assert or seek to assert against any officer, employee or agent of the Agents any claim it might have against any of them
in respect of the matters referred to in this Clause 6.15.
|
7.
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
7.1
|
Appointment of Additional Agents
|
|
|
(a)
|
The Collateral Agent shall, at any time and for any purpose or reason whatsoever, have the power to appoint any person to act either as a new or additional trustee, or
as co-trustee jointly with the Collateral Agent, with (subject to the provisions of this Deed) such of the Collateral Agent’s rights (including the right to reasonable remuneration and indemnity but not exceeding those conferred on the
Collateral Agent by this Deed), duties and obligations as are vested in the Collateral Agent by this Deed or any Credit Document as shall be conferred or imposed on such person by the instrument of such co-trustee’s appointment.
|
17
|
|
(b)
|
Any such appointment by the Collateral Agent shall be reasonably acceptable to the Company; provided that the Company’s consent shall not be required pursuant to
this clause (b) if an Event of Default exists at the time of the appointment of the new or additional or co-trustee acting jointly with the Agents.
|
|
|
(c)
|
The Collateral Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral
Agent shall have exercised reasonable care in the selection of such person.
|
|
|
(d)
|
So long as it continues to be a trustee under this Deed, the Collateral Agent shall have power to remove any such new or additional trustee or co-Collateral Agents with
or without cause.
|
|
|
(e)
|
The remuneration the Collateral Agent may pay to any such person, and any costs and expenses incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Deed, be treated as costs and expenses incurred by the Collateral Agent.
|
The
Collateral Agent may at any time delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Credit Documents and such delegation may be made upon such terms
and conditions (including the power to sub-delegate) and subject to such restrictions as the Collateral Agent may think fit. Such delegate or sub-delegate shall be responsible for its own acts and omissions and the Agents shall not be bound to
supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral Agent shall have exercised reasonable care in the selection of such person.
|
7.3
|
Retirement or Removal of Agents
|
|
|
(a)
|
The Collateral Agent may retire at any time (without assigning any reason therefor and without being responsible for any costs occasioned by such retirement) by giving
not less than 15 Business Days’ prior written notice to that effect to the Facility Agent (on behalf of the Lenders) and the Company.
|
|
|
(b)
|
The Delegate Collateral Agent may not resign except with the prior consent of the Collateral Agent. Only after such consent is received and subject to the other
provisions of this Clause 7.3 and without being responsible for any costs occasioned by such resignation, the Delegate Collateral Agent may resign by giving not less than 15 Business Days’ prior written notice to that effect to the Facility
Agent (on behalf of the Lenders) and the Company.
|
|
|
(c)
|
The Facility Agent (acting on the instructions of the Required Lenders), after consultation with the Parent, may remove an Agent from its role as trustee under this
Deed by giving notice to that effect to the relevant Agent and each of the other Parties to this Deed.
|
18
|
|
(d)
|
The retirement or removal of a sole Collateral Agent or Delegate Collateral Agent shall not take effect until (i) the appointment of a successor Collateral Agent
or Delegate Collateral Agent, as the case may be, as a co-trustee has been made and (ii) the Facility Agent is satisfied that all things required to be done in order that the relevant Credit Documents continue to provide perfected and
enforceable security in favour of the successor Collateral Agent or Delegate Collateral Agent (as applicable) have been done.
|
|
|
(e)
|
If a notice of retirement or removal has been given under paragraph (a) or (b) above, the power to appoint new Agents shall vest in the Required Lenders. The
Required Lenders shall appoint a successor Collateral Agent or Delegate Collateral Agent, as the case may be, who shall be a commercial bank or trust company reasonably acceptable to the Company; provided that the Company’s consent shall not be
required if an Event of Default exists at the time of appointment of such successor Agent. If no successor Agent shall have (i) been appointed by the Required Lenders and (ii) accepted such appointment within 15 Business Days of the giving
of such notice, the Facility Agent (acting on the instructions of the Required Lenders), with the consent of the Company (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and
surplus of not less than $500,000,000 as successor Collateral Agent or Delegate Collateral Agent (as applicable) who shall serve as Agent until such time, if any, as the Required Lenders appoint a successor Collateral Agent or Delegate Collateral
Agent (as applicable) as provided above; provided that the Company’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Agent.
|
|
|
(f)
|
If a successor to the Collateral Agent or the Delegate Collateral Agent is appointed under the provisions of this Deed (i) the retiring Agent shall be discharged
from any further obligations under, but shall remain entitled to the benefits of, this Deed and (ii) the successor trustee and each of the other Parties shall have same rights and obligations amongst themselves as they would have had if such
successor had been an original party to this Deed.
|
No party to
this Deed may assign all or any of its rights or transfer any of its obligations under this Deed except as expressly contemplated by this Deed, by the Credit Agreement or as may be required by law.
|
8.2
|
Change of Secured Creditor
|
Any person which is (subject only to its accession to this Deed) a permitted assignee or a transferee of a Lender, a transferee of a ECF
Hedging Creditor or a successor Facility Agent, in each case for the purposes of and in accordance with the terms of the Credit Agreement, shall be entitled to execute and deliver to the Collateral Agent
19
a Secured Creditor Accession Undertaking, a Transfer Certificate or Assignment Agreement and, with effect from (x) the date of acceptance by, where appropriate, the Facility Agent (or, if
appropriate, the outgoing Facility Agent) and the Collateral Agent or (y) if later, the date specified in that Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement:
|
|
(a)
|
the Secured Creditor ceasing to be a Lender and/or Facility Agent shall be discharged from further obligations towards the Collateral Agent and other Secured Creditors
under this Deed and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to such date); and
|
|
|
(b)
|
as from that date, the new Lender or Facility Agent shall assume the same obligations, and become entitled to the same rights as it would have had if it had been an
original party to this Deed in that capacity.
|
Any
ECF Hedging Creditor that wishes to become a Party to this Deed in the capacity as a Secured Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Secured Creditor Accession Undertaking. With effect from
the date of acceptance by the Collateral Agent of a Secured Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by such ECF Hedging Creditor or, if later, the date specified in that Secured Creditor Accession
Undertaking, the ECF Hedging Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Deed in that capacity.
|
9.1
|
Transaction and Enforcement Expenses
|
The Credit Parties shall, from time to time on demand of the Agents, reimburse the Agents:
|
|
(a)
|
for all reasonable documented out-of-pocket costs and expenses (including legal fees) properly incurred by the Agents, a Receiver or any Delegate in connection with the
negotiation, preparation and execution of this Deed and the Credit Documents and the completion of the transactions and perfection of the security contemplated in the Credit Documents; and
|
|
|
(b)
|
on a full indemnity basis, for all costs and expenses (including legal fees) incurred by the Agents, a Receiver or any Delegate in connection with the exercise,
preservation and/or enforcement of the Security, any of the rights, powers and remedies of the Agents and any proceedings instituted by or against the Agents as a consequence of taking or holding the Security or of enforcing those rights, powers and
remedies;
|
in each case, together with any applicable VAT thereon.
20
The Credit
Parties shall promptly pay all stamp, registration, notarial, documentary and other taxes or fees (including any penalties fines, supplements, surcharge or interest relating to such taxes) to which this Deed, the Credit Documents, the Transaction
Security or any judgment given in connection with them, is or at any time may be, subject and shall, from time to time, indemnify the Agents on demand against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax or fee.
If
any Credit Party fails to pay any sum on the due date for payment of that sum the relevant Credit Party shall pay interest on any such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on
such sum) from the date of demand until the date of payment calculated on a daily basis at the rate determined in accordance with the provisions of section 2.06(b) or (c) (
Interest
) (as applicable) of the Credit Agreement.
|
10.
|
AMENDMENTS AND RELEASES
|
The Company
and the Agents, if authorised by the Facility Agent, may amend the terms of, waive any of the requirements of, or grant consents under, this Deed any such amendment, waiver or consent shall be binding on all the Parties to this Deed and the Agents
shall be under no liability whatsoever in respect thereof
provided that
:
|
|
(i)
|
the prior consent of all of the Lenders is required to authorise any amendment to Clause 3.1 (
Order of Application
)), this Clause 10 or Clause 11
(
Termination of the Trusts
); and
|
|
|
(ii)
|
no new or additional obligations may be imposed upon, nor shall any amendment or waiver which relates to the rights of, the Facility Agent or of the Agents (including,
without limitation, Clause 4.3 (
Indemnity to Agents
)) be effective without the consent of the Facility Agent or, as the case may be, the Agents.
|
Upon:
|
|
(a)
|
a disposal of any of the Trust Property or Trust Property Delegated pursuant to the enforcement of the Security by a Receiver or the Agents;
|
|
|
(b)
|
a disposal of any of the Trust Property or Trust Property Delegated in accordance with section 14.21
(Release of Liens and the Parent Guaranty; Flag Jurisdiction
Transfer
) of the Credit Agreement; or
|
21
|
|
(c)
|
any other disposal of any of the Trust Property or Trust Property Delegated which is otherwise permitted under the Credit Documents, the Agents shall (at the cost of
the Credit Parties) release that property from the Transaction Security to which it is subject and may execute, without the need for any further authority from the Secured Creditors, any release of the Security or other claim over that asset and to
issue any certificates of non-crystallisation of floating charges that may be required or desirable.
|
|
10.3
|
Release of Credit Parties
|
If a Credit Party ceases to be a Credit Party under the Credit Agreement then such Credit Party shall automatically be released as a
Credit Party under this Deed. Each of the Parties agrees that the Agents may release any of the Credit Parties from any guarantee or indemnity in the circumstances contemplated by the Credit Agreement. In the case of a Credit Party which is no
longer a Credit Party under the Credit Agreement, the Agents shall (at the cost of that Credit Party) release the Security granted by it and the Agents are authorised, without the need for further authority from the Secured Creditors, to execute
such agreements or deeds as are necessary to effect such a release.
|
11.
|
TERMINATION OF THE TRUSTS
|
The trusts set out in this Deed shall terminate on the Discharge Date. At that time the Agents shall release, without recourse or
warranty, all of the Transaction Security then held by it.
No
failure by the Agents to exercise, nor any delay by the Agents in exercising, any right or remedy under this Deed shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or other
exercise thereof or the exercise of any other such right or remedy.
|
13.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect or any of the Transaction Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity,
unenforceability or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Deed or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Transaction Security under the law of any other jurisdiction.
|
|
13.2
|
Potentially Avoided Payments
|
If the Agents determine that an amount paid to the Secured Creditors under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Deed, such amount shall be regarded as not having been paid.
22
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Credit Party hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agents could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Credit Parties in respect of any sum due to the Agents hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged
only to the extent that on the Business Day following receipt by the Agents of any sum adjudged to be so due in such other currency the Agents may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Agents in the specified currency, each Credit Party agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agents against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Agents in the specified currency, the Agents agree to remit such excess to
the Company.
The
rights and remedies provided by this Deed are cumulative and not exclusive of any rights or remedies provided by law.
Where
there are any inconsistencies between the Trustee Acts and the provisions of this Deed, the provisions of this Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of
this Deed shall constitute a restriction or exclusion for the purposes of that Act.
|
13.6
|
Conflicting provisions
|
If there is any conflict between the provisions of this Deed and any Credit Document with regard to instructions to or other matters
affecting the Agents, this Deed will prevail. However, nothing in this Deed shall limit the ability of the Agents to exercise any rights, powers and discretions it may have in its capacity as a Secured Creditor.
Nothing contained in this Deed shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it.
Any consents
given by the Agents for the purposes of this Deed may be given on such terms and subject to such conditions (if any) as the Agents may require.
23
|
14.1
|
Communications in Writing
|
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
(c)
|
to the Facility Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
24
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com,
or to such other address and/or number as is notified in writing by a Party to the other Parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original Secured Creditors at the addressed identified with its name in Schedule 1 hereto; provided that, with respect to all notices and other
communication made by electronic mail or other electronic means, the Agents, the Facility Agent and the Company agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents or the Facility Agent shall not be effective until received by the
Agents or the Facility Agent (as applicable), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Company to the Agents or the Facility Agent,
only if it is addressed in such a manner as the Agents or the Facility Agent shall specify for this purpose.
25
|
15.
|
GOVERNING LAW AND JURISDICTION
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Each of the
parties hereto agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising our of or in connection with this Deed or any non-contractual obligations arising out of or in connection
with this Deed (“
Proceedings
”) and, for such purposes, irrevocably submits to the jurisdiction of such courts. Nothing in this Clause 15.2 shall (or shall be construed so as to) limit the right of any Secured Creditor to take
Proceedings in any other court of competent jurisdiction, nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings by any Secured Creditor in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by law.
For
the purpose of Clause 15.2 (
Jurisdiction
), the parties hereto irrevocably waive any objection which they might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and agree(s)
not to claim that any such court is not a convenient or appropriate forum.
The Credit
Parties agree that the process by which any Proceedings in England are begun may be served on it by being delivered to EC3 Services Limited at 51 Eastcheap, London, EC3M 1JP or, if different, its registered office for the time being. If such person
is not or ceases to be effectively appointed to accept service of process on behalf of the Credit Parties, the Credit Parties shall, on the written demand of any Secured Creditor, appoint a further person in England to accept service of process on
its behalf and, failing such appointment within 15 days, any Secured Creditor shall be entitled to appoint such a person by written notice to the Credit Parties. Nothing in this paragraph shall affect the right of any Secured Creditor to serve
process in any other manner permitted by law.
|
16.
|
COUNTERPARTS AND EFFECTIVENESS
|
This Deed
may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This Deed
shall take effect and be delivered as a deed on the date on which it is stated to be made notwithstanding that the Agents or any other Party may have executed it under hand only.
26
IN WITNESS WHEREOF
this Deed has been executed as a deed by the Credit Parties and has been signed on
behalf of the Agents and other Parties.
27
SCHEDULE 1
ORIGINAL SECURED CREDITORS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail:marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
28
SCHEDULE 2
FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
To:
|
KfW IPEX-Bank GmbH and [
—
], for themselves and each of the other Secured
|
|
|
Creditors to the Security Trust Deed referred to below.
|
THIS UNDERTAKING
is made on [
date
] by [
new Lender/ECF Hedging Creditor/Facility Agent/Receiver/Delegate
] (the “
Acceding Secured Creditor
”) in relation to the Security
Trust Deed (the “
Security Trust Deed
”) dated [
—
] between KfW IPEX-Bank GmbH as Collateral Agent, Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral
Agent, KfW IPEX-Bank GmbH as facility agent, the Secured Creditors named therein and the Credit Parties. Terms defined in the Security Trust Deed shall bear the same meanings when used in this Undertaking.
In consideration of the Acceding Secured Creditor being accepted as a Secured Creditor for the purposes of the Security Trust Deed, the Acceding Secured
Creditor hereby confirms that, as from [
date
], it intends to be party to the Security Trust Deed as a Secured Creditor, undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by [the Facility Agent and
by]/[a Secured Creditor] and agrees that it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
This Undertaking shall be governed by and construed in accordance with English law.
THIS
UNDERTAKING
has been entered into on the date stated above.
Acceding [Secured Creditor]/[Facility Agent]
By:
Address for Notices:
Fax:
For attention of:
|
|
|
Accepted by the Collateral Agent:
|
|
|
|
|
for and on behalf of
KfW IPEX-Bank GmbH
|
Date:
|
|
|
Accepted by the [Facility Agent]/[outgoing Facility Agent]:
|
|
|
|
|
for and on behalf of
[
Insert name of Facility Agent or
outgoing Facility Agent as appropriate]
]
|
Date:
29
SIGNATORIES
THE COMPANY
Signed as a deed on behalf of
BREAKAWAY
TWO, LTD
., a company incorporated in
Bermuda, by [
full name(s) of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory,
[is][are] acting under the authority of the company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE PARENT
Signed as a deed on behalf of
NCL
CORPORATION LTD
., a company
incorporated in Bermuda, by [
full name(s) of
person(s) signing
], being [a] person[s] who, in
accordance with the laws of that
territory,
[is][are] acting under the authority of the company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE ORIGINAL SECURED CREDITORS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by
[name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
DNB NOR BANK
ASA,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
Executed as a deed by
NORDEA BANK
NORGE ASA,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
THE FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
THE COLLATERAL AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
THE DELEGATE COLLATERAL AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT,
acting by [
name
of director
]:
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
[
Signature of Director
]
Director
|
EXHIBIT Q
Dated [
—
] 2010
HULL NO. S. 692
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY TWO, LTD.
as Borrower
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
DELEGATION
|
|
|
5
|
|
|
3.
|
|
COVENANT TO PAY
|
|
|
5
|
|
|
4.
|
|
LEGAL ASSIGNMENT
|
|
|
5
|
|
|
5.
|
|
THE CONTRACT
|
|
|
6
|
|
|
6.
|
|
CONTINUING SECURITY
|
|
|
7
|
|
|
7.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
9
|
|
|
8.
|
|
UNDERTAKINGS
|
|
|
10
|
|
|
9.
|
|
FURTHER ASSURANCE
|
|
|
11
|
|
|
10.
|
|
ENFORCEMENT OF SECURITY
|
|
|
12
|
|
|
11.
|
|
RECEIVERS
|
|
|
12
|
|
|
12.
|
|
APPLICATION OF PROCEEDS
|
|
|
13
|
|
|
13.
|
|
POWER OF ATTORNEY
|
|
|
13
|
|
|
14.
|
|
RELEASE OF THE SECURITY
|
|
|
13
|
|
|
15.
|
|
PAYMENTS
|
|
|
14
|
|
|
16.
|
|
WAIVERS AND REMEDIES
|
|
|
14
|
|
|
17.
|
|
ADDITIONAL PROVISIONS
|
|
|
14
|
|
|
18.
|
|
ASSIGNMENT
|
|
|
15
|
|
|
19.
|
|
NOTICES
|
|
|
16
|
|
|
20.
|
|
GOVERNING LAW
|
|
|
18
|
|
|
21.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
19
|
|
|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
|
|
20
|
|
|
SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
23
|
|
|
SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
|
25
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Borrower
”
); and
|
|
(2)
|
KFW IPEX-BANK GMBH
as collateral agent for and on behalf of the Secured Creditors (the
“
Collateral Agent
”
, which expression
includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
|
(3)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the
“
Delegate
”
, which expression includes any person which is for the time being a
delegate appointed by the Collateral Agent for the purposes of this Assignment.
|
RECITALS
|
(A)
|
The Lenders are willing to make a loan facility available to the Borrower on the terms and subject to the conditions set out in the Credit Agreement, on condition that
the Borrower enters into this Assignment as security for its obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Borrower is satisfied that the Borrower is entering into this Assignment for the purposes of its business and that its doing so benefits
the Borrower.
|
|
(C)
|
The Borrower and the Delegate intend this Assignment to take effect as a deed.
|
|
(D)
|
Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreement, the Security Trust Deed and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of
Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agreed Rate
”
means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of the Credit
Agreement.
“
Assigned Rights
”
means the Borrower’s rights, title, interest and benefits in,
to and in respect of the Refund Guarantees.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Borrower, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel (as defined in the Credit Agreement).
“
Credit Agreement
” means the €529,846,154 credit agreement dated on or about the date hereof between,
inter
alia
, the Parent, the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the Credit Agreement.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Borrower, the Lenders, the collateral agent under the Jade Credit Facility, the collateral agent under the Jewel Credit Facility and the Collateral Agent.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate
Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 2 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on or about the
date hereof between the Borrower, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the Term Loan Security Trust Deed to act as security trustee for and on behalf of the Term Loan Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
2
“
Refund Guarantees
” means any and all refund guarantees from time to time
issued in favour of the Borrower by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Delegate is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Borrower under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the
Lenders.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Term Loan Security Trust Deed
” means the security trust deed dated on or about the date hereof between,
inter
alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Term Loan Facilities.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
3
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
4
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
|
2.1
|
Pursuant to the Security Trust Deed, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights, powers
and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deed including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deed. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Borrower agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation which is due but unpaid.
Any Secured
Obligation which is owed by the Borrower under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such Secured Obligation is unconditionally and irrevocably paid in full and such
interest shall accrue from day to day (after as well as before judgment) and be payable by the Borrower on demand of the Delegate.
The Borrower
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deed as security for the payment and discharge of the Secured Obligations.
5
|
4.2
|
Non-Assignable Rights
|
The Borrower declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is
for any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Borrower shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Borrower shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Borrower shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Borrower shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Borrower acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Borrower on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees).
|
6
|
5.2
|
Performance of Obligations
|
The Borrower shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect
and enforce the interests of the Delegate in the Refund Guarantees.
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate under this
Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
7
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Borrower under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in the status, function, control or ownership of the
Borrower or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Borrower or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Borrower under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
8
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Borrower makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Borrower acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Borrower (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge
its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation
of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Borrower has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Borrower is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Borrower is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreement, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Borrower hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Borrower’s jurisdiction.
9
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement and the Credit Agreement, no person other
than the Borrower has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Borrower has not received notice of any such claim.
Save as
permitted by the Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of), whether by way of security or otherwise,
the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
10
The Borrower
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
8.3
|
Notification of Misrepresentation
|
The Borrower shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Borrower shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Borrower shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement
to Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Borrower shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall hold the same upon an express trust for and on behalf of the Delegate until delivered.
The
Borrower shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Borrower shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Borrower shall execute all such instruments, deeds and agreements and give all
such notices and directions as the Delegate may consider necessary.
11
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate may in its absolute discretion enforce all or any part of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in
such manner as it thinks fit.
Following
the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Borrower) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply the proceeds of such sale or other disposal in
paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Borrower requests it to do so, the Delegate
may by a written instrument and without notice to the Borrower appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for all purposes the
agent of the Borrower.
12
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement or, following the termination thereof, in accordance with the provisions of the Credit Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Borrower hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Borrower is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The
Borrower hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of the Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Borrower, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
13
All payments
by the Borrower under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Borrower is required by law to make payment subject
to tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Borrower
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Borrower under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Borrower under this Assignment shall be paid in the manner in which payments are to be made by the Borrower under the Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
14
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such
excess to the Borrower.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in the Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Borrower’s Rights
|
The rights of the Borrower under this Assignment are not assignable or transferable and the Borrower agrees that it will not purport to
assign all or any such rights except as provided under the Credit Agreement.
15
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Borrower except as provided under the Credit Agreement.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deed.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
Domstrasse 18
D – 20095 Hamburg
Germany
|
|
Attn:
|
Marcus Weber / Anne Randewig
|
Telephone: +49 40 3769 – 9646 / -9647
Facsimile: +49 40 3769 - 9649
e-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
(b)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
16
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
17
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Borrower agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Borrower to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: (i) irrevocably appoints EC3 Services Limited at 51
Eastcheap, London, England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify
the relevant credit party of the process will not invalidate the proceedings concerned. 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
|
18
|
|
Borrower must immediately (and in any event within five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the
Collateral Agent and/or the Delegate may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
|
|
21.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Borrower, the Collateral Agent and the Delegate.
19
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
To:
|
KfW IPEX-Bank GmbH as Refund Guarantor
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
—
]
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
|
Cc:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D – 20095 Hamburg
|
|
Attn:
|
Marcus Weber / Anne Randewig
|
|
|
Telephone:
|
+49 40 3769 – 9646 / -9647
|
|
|
Facsimile:
|
+49 40 3769 - 9649
|
|
|
e-mail:
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the
“
Borrower
”), KfW IPEX-Bank GmbH as Collateral Agent and [
—
] as delegate (the “
Delegate
”), the Borrower has assigned to the Delegate a first priority assignment of
all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
—
] and issued by you as refund guarantor in favour of the Borrower pursuant
to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in
respect of the Refund Guarantee.
20
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Borrower under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
|
|
(b)
|
following an Event of Default (as defined in the €529,846,154 credit agreement dated on or about the date hereof between,
inter alia
, NCL Corporation Ltd.,
the Borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent, Nordea Bank Norge ASA as documentation agent and Commerzbank AG as Hermes Agent (the “
Credit Agreement
”)), written
notice of which Event of Default has been delivered to you by the Delegate, all remedies of the Borrower provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Delegate;
|
|
(c)
|
following an Event of Default, all rights of the Borrower to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Borrower arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Borrower has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is
given by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Borrower has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Borrower
which meets the Borrower’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by the Facility Agent (as defined in the Credit Agreement) to such termination;
|
|
(g)
|
the Delegate has agreed that the Borrower may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Borrower) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Borrower has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Borrower could do in relation to the Refund Guarantee. Accordingly, the Borrower authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time
to time in connection with the Refund Guarantee without further authority or enquiry by you from the Borrower; and
|
21
|
(i)
|
the Borrower remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Borrower to perform its obligations.
|
You are
hereby authorised and instructed, without requiring further approval from the Borrower, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Borrower.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
22
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[
To be printed only on copy of the Notice of
Assignment given
]
|
To:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D – 20095 Hamburg
|
|
Attn:
|
Marcus Weber / Anne Randewig
|
|
|
Telephone:
|
+49 40 3769 – 9646 / -9647
|
|
|
Facsimile:
|
+49 40 3769 - 9649
|
|
|
e-mail:
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of junior liens held by the
Delegate as security trustee on behalf of certain “term loan creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title, interests and benefits in, to
or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that we acknowledge
that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
23
Yours faithfully
For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
By:
Date:
24
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
|
|
|
[Name of Issuer]
|
|
[Date of Refund Guarantee]
|
25
|
|
|
|
|
|
|
SIGNATORIES
|
|
|
|
|
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY TWO, LTD,
a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
|
Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a]
person[s] who, in accordance with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH,
a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
26
Exhibit 10.60
EXECUTION COPY
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
€126,075,000
CREDIT AGREEMENT
among
NCL CORPORATION LTD.,
as Parent,
PRIDE OF HAWAII, LLC,
as Borrower,
VARIOUS LENDERS,
KFW IPEX-BANK GMBH,
as Facility Agent and Collateral Agent,
NORDEA BANK NORGE ASA,
as Documentation Agent,
and
COMMERZBANK AKTIENGESELLSCHAFT,
as Hermes Agent
Dated
November 18, 2010
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
DNB NOR BANK ASA,
HSBC BANK PLC,
KFW IPEX-BANK GMBH
and
NORDEA BANK NORGE ASA,
as Joint Lead Arrangers
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
SECTION 1.
|
|
Definitions and Accounting Terms
|
|
|
1
|
|
|
|
|
|
|
1.01
|
|
Defined Terms
|
|
|
1
|
|
|
|
|
|
|
SECTION 2.
|
|
Amount and Terms of Credit Facility
|
|
|
31
|
|
|
|
|
|
|
2.01
|
|
The Commitments
|
|
|
31
|
|
|
2.02
|
|
Amount and Timing of Each Borrowing; Currency of Disbursements
|
|
|
32
|
|
|
2.03
|
|
Notice of Borrowing
|
|
|
33
|
|
|
2.04
|
|
Disbursement of Funds
|
|
|
33
|
|
|
2.05
|
|
Pro Rata Borrowings
|
|
|
34
|
|
|
2.06
|
|
Interest
|
|
|
34
|
|
|
2.07
|
|
Interest Periods
|
|
|
35
|
|
|
2.08
|
|
Increased Costs, Illegality, Market Disruption, etc.
|
|
|
36
|
|
|
2.09
|
|
Indemnification; Breakage Costs
|
|
|
38
|
|
|
2.10
|
|
Change of Lending Office; Limitation on Additional Amounts
|
|
|
39
|
|
|
2.11
|
|
Replacement of Lenders
|
|
|
39
|
|
|
2.12
|
|
Disruption to Payment Systems, Etc.
|
|
|
40
|
|
|
|
|
|
|
SECTION 3.
|
|
Commitment Commission; Fees; Reductions of Commitment
|
|
|
41
|
|
|
|
|
|
|
3.01
|
|
Commitment Commission
|
|
|
41
|
|
|
3.02
|
|
Voluntary Reduction or Termination of Commitments
|
|
|
41
|
|
|
3.03
|
|
Mandatory Reduction of Commitments
|
|
|
41
|
|
|
|
|
|
|
SECTION 4.
|
|
Prepayments; Repayments; Taxes
|
|
|
42
|
|
|
|
|
|
|
4.01
|
|
Voluntary Prepayments
|
|
|
42
|
|
|
4.02
|
|
Mandatory Repayments and Commitment Reductions
|
|
|
43
|
|
|
4.03
|
|
Method and Place of Payment
|
|
|
44
|
|
|
4.04
|
|
Net Payments; Taxes
|
|
|
44
|
|
|
4.05
|
|
Application of Proceeds
|
|
|
45
|
|
|
|
|
|
|
SECTION 5.
|
|
Conditions Precedent to the Initial Borrowing Dates
|
|
|
47
|
|
|
|
|
|
|
5.01
|
|
Effective Date
|
|
|
47
|
|
|
5.02
|
|
Intercreditor Agreement
|
|
|
47
|
|
|
5.03
|
|
Corporate Documents; Proceedings; etc.
|
|
|
48
|
|
|
5.04
|
|
Know Your Customer
|
|
|
48
|
|
|
5.05
|
|
Construction Contract and Other Material Agreements
|
|
|
48
|
|
|
5.06
|
|
Assignment of Contracts
|
|
|
48
|
|
|
5.07
|
|
Collateral and Guaranty Requirements
|
|
|
50
|
|
|
5.08
|
|
Consents Under Existing Credit Facilities
|
|
|
50
|
|
|
5.09
|
|
Process Agent
|
|
|
50
|
|
|
5.10
|
|
Equity Payment
|
|
|
50
|
|
|
5.11
|
|
Financing Statements
|
|
|
50
|
|
(i)
|
|
|
|
|
|
|
|
|
5.12
|
|
Opinions of Counsel
|
|
|
51
|
|
|
5.13
|
|
Security Trust Deed
|
|
|
52
|
|
|
5.14
|
|
Litigation
|
|
|
52
|
|
|
|
|
|
|
SECTION 6.
|
|
Conditions Precedent to each Borrowing Date
|
|
|
52
|
|
|
|
|
|
|
6.01
|
|
No Default; Representations and Warranties
|
|
|
52
|
|
|
6.02
|
|
Consents
|
|
|
52
|
|
|
6.03
|
|
Refund Guarantees
|
|
|
53
|
|
|
6.04
|
|
ECF Payment
|
|
|
54
|
|
|
6.05
|
|
Fees, Costs, etc.
|
|
|
54
|
|
|
6.06
|
|
Construction Contract
|
|
|
54
|
|
|
6.07
|
|
Hermes Cover
|
|
|
54
|
|
|
6.08
|
|
Notice of Borrowing
|
|
|
54
|
|
|
6.09
|
|
Solvency Certificate
|
|
|
54
|
|
|
6.10
|
|
Litigation
|
|
|
55
|
|
|
|
|
|
|
SECTION 7.
|
|
Conditions Precedent to each Delivery Date
|
|
|
55
|
|
|
|
|
|
|
7.01
|
|
Delivery of Vessel
|
|
|
55
|
|
|
7.02
|
|
Evidence of 90% Payment
|
|
|
55
|
|
|
7.03
|
|
Hermes Compliance; Compliance with Applicable Laws and Regulations
|
|
|
55
|
|
|
|
|
|
|
SECTION 8.
|
|
Representations and Warranties
|
|
|
55
|
|
|
|
|
|
|
8.01
|
|
Entity Status
|
|
|
56
|
|
|
8.02
|
|
Power and Authority
|
|
|
56
|
|
|
8.03
|
|
No Violation
|
|
|
56
|
|
|
8.04
|
|
Governmental Approvals
|
|
|
56
|
|
|
8.05
|
|
Financial Statements; Financial Condition
|
|
|
57
|
|
|
8.06
|
|
Litigation
|
|
|
57
|
|
|
8.07
|
|
True and Complete Disclosure
|
|
|
57
|
|
|
8.08
|
|
Use of Proceeds
|
|
|
57
|
|
|
8.09
|
|
Tax Returns and Payments
|
|
|
57
|
|
|
8.10
|
|
No Material Misstatements
|
|
|
58
|
|
|
8.11
|
|
The Security Documents
|
|
|
58
|
|
|
8.12
|
|
Capitalization
|
|
|
59
|
|
|
8.13
|
|
Subsidiaries
|
|
|
59
|
|
|
8.14
|
|
Compliance with Statutes, etc.
|
|
|
59
|
|
|
8.15
|
|
Winding-up, etc.
|
|
|
59
|
|
|
8.16
|
|
No Default
|
|
|
59
|
|
|
8.17
|
|
Pollution and Other Regulations
|
|
|
59
|
|
|
8.18
|
|
Ownership of Assets
|
|
|
60
|
|
|
8.19
|
|
Concerning the Collateral Vessel
|
|
|
60
|
|
|
8.20
|
|
Citizenship
|
|
|
61
|
|
|
8.21
|
|
Collateral Vessel Classification
|
|
|
61
|
|
|
8.22
|
|
No Immunity
|
|
|
61
|
|
|
8.23
|
|
Fees, Governing Law and Enforcement
|
|
|
61
|
|
|
8.24
|
|
Form of Documentation
|
|
|
61
|
|
(ii)
|
|
|
|
|
|
|
|
|
8.25
|
|
Pari Passu or Priority Status
|
|
|
61
|
|
|
8.26
|
|
Solvency
|
|
|
62
|
|
|
8.27
|
|
No Undisclosed Commissions
|
|
|
62
|
|
|
8.28
|
|
Completeness of Documentation
|
|
|
62
|
|
|
8.29
|
|
Money Laundering
|
|
|
62
|
|
|
|
|
|
|
SECTION 9.
|
|
Affirmative Covenants
|
|
|
62
|
|
|
|
|
|
|
9.01
|
|
Information Covenants
|
|
|
62
|
|
|
9.02
|
|
Books and Records; Inspection
|
|
|
64
|
|
|
9.03
|
|
Maintenance of Property; Insurance
|
|
|
65
|
|
|
9.04
|
|
Corporate Franchises
|
|
|
65
|
|
|
9.05
|
|
Compliance with Statutes, etc.
|
|
|
65
|
|
|
9.06
|
|
Hermes Cover
|
|
|
65
|
|
|
9.07
|
|
End of Fiscal Years
|
|
|
65
|
|
|
9.08
|
|
Performance of Obligations
|
|
|
66
|
|
|
9.09
|
|
Payment of Taxes
|
|
|
66
|
|
|
9.10
|
|
Further Assurances
|
|
|
66
|
|
|
9.11
|
|
Ownership of Subsidiaries
|
|
|
66
|
|
|
9.12
|
|
Consents and Registrations
|
|
|
67
|
|
|
9.13
|
|
Flag of Collateral Vessel
|
|
|
67
|
|
|
9.14
|
|
“Know Your Customer” and Other Similar Information
|
|
|
67
|
|
|
|
|
|
|
SECTION 10.
|
|
Negative Covenants
|
|
|
67
|
|
|
|
|
|
|
10.01
|
|
Liens
|
|
|
67
|
|
|
10.02
|
|
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc.
|
|
|
69
|
|
|
10.03
|
|
Dividends
|
|
|
70
|
|
|
10.04
|
|
Advances, Investments and Loans
|
|
|
71
|
|
|
10.05
|
|
Transactions with Affiliates
|
|
|
71
|
|
|
10.06
|
|
Free Liquidity
|
|
|
73
|
|
|
10.07
|
|
Total Net Funded Debt to Total Capitalization
|
|
|
73
|
|
|
10.08
|
|
Collateral Maintenance
|
|
|
74
|
|
|
10.09
|
|
Consolidated EBITDA to Consolidated Debt Service
|
|
|
74
|
|
|
10.10
|
|
Business; Change of Name
|
|
|
74
|
|
|
10.11
|
|
Subordination of Indebtedness
|
|
|
74
|
|
|
10.12
|
|
Activities of Borrower, etc.
|
|
|
75
|
|
|
10.13
|
|
Material Amendments or Modifications of Construction Contracts
|
|
|
75
|
|
|
10.14
|
|
No Place of Business
|
|
|
75
|
|
|
|
|
|
|
SECTION 11.
|
|
Events of Default
|
|
|
75
|
|
|
|
|
|
|
11.01
|
|
Payments
|
|
|
75
|
|
|
11.02
|
|
Representations, etc.
|
|
|
76
|
|
|
11.03
|
|
Covenants
|
|
|
76
|
|
|
11.04
|
|
Default Under Other Agreements
|
|
|
76
|
|
|
11.05
|
|
Bankruptcy, etc.
|
|
|
76
|
|
|
11.06
|
|
Total Loss
|
|
|
77
|
|
|
11.07
|
|
Security Documents
|
|
|
77
|
|
(iii)
|
|
|
|
|
|
|
|
|
11.08
|
|
Guaranties
|
|
|
78
|
|
|
11.09
|
|
Judgments
|
|
|
78
|
|
|
11.10
|
|
Cessation of Business
|
|
|
78
|
|
|
11.11
|
|
Revocation of Consents
|
|
|
78
|
|
|
11.12
|
|
Unlawfulness
|
|
|
78
|
|
|
11.13
|
|
Insurances
|
|
|
79
|
|
|
11.14
|
|
Disposals
|
|
|
79
|
|
|
11.15
|
|
Government Intervention
|
|
|
79
|
|
|
11.16
|
|
Change of Control
|
|
|
79
|
|
|
11.17
|
|
Material Adverse Change
|
|
|
79
|
|
|
11.18
|
|
Repudiation of Construction Contract or other Material Documents
|
|
|
79
|
|
|
|
|
|
|
SECTION 12.
|
|
Agency and Security Trustee Provisions
|
|
|
80
|
|
|
|
|
|
|
12.01
|
|
Appointment and Declaration of Trust
|
|
|
80
|
|
|
12.02
|
|
Nature of Duties
|
|
|
81
|
|
|
12.03
|
|
Lack of Reliance on the Agents
|
|
|
81
|
|
|
12.04
|
|
Certain Rights of the Agents
|
|
|
81
|
|
|
12.05
|
|
Reliance
|
|
|
82
|
|
|
12.06
|
|
Indemnification
|
|
|
82
|
|
|
12.07
|
|
The Agents in their Individual Capacities
|
|
|
82
|
|
|
12.08
|
|
Resignation by an Agent
|
|
|
82
|
|
|
12.09
|
|
The Joint Lead Arrangers
|
|
|
83
|
|
|
12.10
|
|
Impaired Agent
|
|
|
83
|
|
|
12.11
|
|
Replacement of an Agent
|
|
|
84
|
|
|
12.12
|
|
Resignation by the Hermes Agent
|
|
|
84
|
|
|
|
|
|
|
SECTION 13.
|
|
Benefit of Agreement
|
|
|
85
|
|
|
|
|
|
|
13.01
|
|
Assignments and Transfers by the Lenders
|
|
|
85
|
|
|
13.02
|
|
Assignment or Transfer Fee
|
|
|
86
|
|
|
13.03
|
|
Assignments and Transfers to Hermes
|
|
|
86
|
|
|
13.04
|
|
Limitation of Responsibility to Existing Lenders
|
|
|
87
|
|
|
13.05
|
|
[Intentionally Omitted]
|
|
|
87
|
|
|
13.06
|
|
Procedure and Conditions for Transfer
|
|
|
87
|
|
|
13.07
|
|
Procedure and Conditions for Assignment
|
|
|
88
|
|
|
13.08
|
|
Copy of Transfer Certificate or Assignment Agreement to Parent
|
|
|
89
|
|
|
13.09
|
|
Security over Lenders’ Rights
|
|
|
89
|
|
|
13.10
|
|
Assignment by a Credit Party
|
|
|
90
|
|
|
13.11
|
|
Lender Participations
|
|
|
90
|
|
|
13.12
|
|
Increased Costs
|
|
|
90
|
|
|
|
|
|
|
SECTION 14.
|
|
Miscellaneous
|
|
|
90
|
|
|
|
|
|
|
14.01
|
|
Payment of Expenses, etc.
|
|
|
90
|
|
|
14.02
|
|
Right of Set-off
|
|
|
92
|
|
|
14.03
|
|
Notices
|
|
|
92
|
|
|
14.04
|
|
No Waiver; Remedies Cumulative
|
|
|
93
|
|
|
14.05
|
|
Payments Pro Rata
|
|
|
93
|
|
(iv)
|
|
|
|
|
|
|
|
|
14.06
|
|
Calculations; Computations
|
|
|
94
|
|
|
14.07
|
|
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
|
|
|
94
|
|
|
14.08
|
|
Counterparts
|
|
|
95
|
|
|
14.09
|
|
Effectiveness
|
|
|
95
|
|
|
14.10
|
|
Headings Descriptive
|
|
|
95
|
|
|
14.11
|
|
Amendment or Waiver; etc.
|
|
|
95
|
|
|
14.12
|
|
Survival
|
|
|
97
|
|
|
14.13
|
|
Domicile of Loans
|
|
|
97
|
|
|
14.14
|
|
Confidentiality
|
|
|
97
|
|
|
14.15
|
|
Register
|
|
|
97
|
|
|
14.16
|
|
Third Party Rights
|
|
|
98
|
|
|
14.17
|
|
Judgment Currency
|
|
|
98
|
|
|
14.18
|
|
Language
|
|
|
98
|
|
|
14.19
|
|
Waiver of Immunity
|
|
|
99
|
|
|
14.20
|
|
“Know Your Customer” Notice
|
|
|
99
|
|
|
14.21
|
|
Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
|
|
|
99
|
|
|
14.22
|
|
Partial Invalidity
|
|
|
100
|
|
|
|
|
|
|
SECTION 15.
|
|
Parent Guaranty
|
|
|
100
|
|
|
|
|
|
|
15.01
|
|
Guaranty and Indemnity
|
|
|
100
|
|
|
15.02
|
|
Continuing Guaranty
|
|
|
101
|
|
|
15.03
|
|
Reinstatement
|
|
|
101
|
|
|
15.04
|
|
Waiver of Defenses
|
|
|
101
|
|
|
15.05
|
|
Guarantor Intent
|
|
|
101
|
|
|
15.06
|
|
Immediate Recourse
|
|
|
102
|
|
|
15.07
|
|
Appropriations
|
|
|
102
|
|
|
15.08
|
|
Deferral of Guarantor’s Rights
|
|
|
102
|
|
|
15.09
|
|
Additional Security
|
|
|
103
|
|
|
|
|
|
|
|
|
SCHEDULE 1.01(a)
|
|
-
|
|
Commitments
|
|
SCHEDULE 1.01(b)
|
|
-
|
|
Existing Jade Scheduled Repayments
|
|
SCHEDULE 1.01(c)
|
|
-
|
|
Mandatory Costs
|
|
SCHEDULE 5.06
|
|
-
|
|
Notices, Acknowledgments and Consents
|
|
SCHEDULE 5.12
|
|
-
|
|
Initial Borrowing Date Required Opinion Items
|
|
SCHEDULE 6.10
|
|
-
|
|
Material Litigation
|
|
SCHEDULE 8.03
|
|
-
|
|
Existing Agreements
|
|
SCHEDULE 8.12
|
|
-
|
|
Capitalization
|
|
SCHEDULE 8.13
|
|
-
|
|
Subsidiaries
|
|
SCHEDULE 8.19
|
|
-
|
|
Collateral Vessel
|
|
SCHEDULE 8.21
|
|
-
|
|
Approved Classification Societies
|
|
SCHEDULE 9.03
|
|
-
|
|
Required Insurances
|
|
SCHEDULE 10.01
|
|
-
|
|
Existing Liens
|
|
SCHEDULE 14.03A
|
|
-
|
|
Credit Party Addresses
|
|
SCHEDULE 14.03B
|
|
-
|
|
Lender Addresses
|
(v)
|
|
|
|
|
|
|
EXHIBIT A
|
|
-
|
|
Form of Notice of Borrowing
|
|
EXHIBIT B
|
|
-
|
|
Form of BankAssure Report
|
|
EXHIBIT C
|
|
-
|
|
Form of Insurance Broker Certificate
|
|
EXHIBIT D
|
|
-
|
|
Form of Secretary’s Certificate
|
|
EXHIBIT E
|
|
-
|
|
Form of Transfer Certificate
|
|
EXHIBIT F
|
|
-
|
|
Form of Assignment of Charter and Earnings
|
|
EXHIBIT G
|
|
-
|
|
Form of Assignment of Insurances
|
|
EXHIBIT H
|
|
-
|
|
Form of Deed of Covenants
|
|
EXHIBIT I-1
|
|
-
|
|
Form of Vessel 1 Assignment of Contracts
|
|
EXHIBIT I-2
|
|
-
|
|
Form of Vessel 2 Assignment of Contracts
|
|
EXHIBIT J
|
|
-
|
|
Form of Solvency Certificate
|
|
EXHIBIT K
|
|
-
|
|
Form of Assignment Agreement
|
|
EXHIBIT L
|
|
-
|
|
Form of Compliance Certificate
|
|
EXHIBIT M-1
|
|
-
|
|
Form of Tranche A Intercreditor Agreement
|
|
EXHIBIT M-2
|
|
-
|
|
Form of Tranche B Intercreditor Agreement
|
|
EXHIBIT M-3
|
|
-
|
|
Form of Jade Intercreditor Agreement
|
|
EXHIBIT N
|
|
-
|
|
Form of Security Trust Deed
|
|
EXHIBIT O-1
|
|
-
|
|
Form of Vessel 1 Assignment of KfW Refund Guarantee
|
|
EXHIBIT O-2
|
|
-
|
|
Form of Vessel 2 Assignment of KfW Refund Guarantee
|
|
EXHIBIT P
|
|
-
|
|
Form of Charterer’s Assignment and Subordination
|
(vi)
THIS CREDIT AGREEMENT, is made by way of deed November 18, 2010, among NCL CORPORATION
LTD., a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”), PRIDE OF HAWAII, LLC, a Delaware limited liability company with its registered
office as of the date hereof at Corporate Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America (the “
Borrower
”), the Lenders party hereto from time to time, KFW IPEX-BANK GMBH, as Facility Agent (in
such capacity, the “
Facility Agent
”) and as Collateral Agent under the Security Documents (in such capacity, the “
Collateral Agent
”), NORDEA BANK NORGE ASA, as Documentation Agent (in such capacity, the
“
Documentation Agent
”), COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent (in such capacity, the “
Hermes Agent
”), and each of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, DNB NOR BANK ASA, HSBC BANK PLC, KFW IPEX-BANK
GMBH and NORDEA BANK NORGE ASA, each in their capacity as joint lead arranger in respect of the credit facility provided for herein (together, the “
Joint Lead Arrangers
”). All capitalized terms used herein and defined in
Section 1 are used herein as therein defined.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a multi-draw term loan
credit facility (the “
Jade Term Loan Facility
”) pursuant to which Loans may be incurred to finance, in part, the construction and acquisition costs of the New Vessels and the related Hermes Premium;
WHEREAS, Norwegian Jewel Limited, an Isle of Man company (the “
Jewel Borrower
”), the Parent, the lenders from time to
time party thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent have entered into that certain credit agreement (as amended, amended and restated, supplemented, novated or otherwise modified from time to
time, the “
Other Term Loan Facility
” and collectively with the Jade Term Loan Facility, the “
Term Loan Facilities
”) dated as of the date hereof pursuant to which loans thereunder may be incurred to finance, in part,
the construction and acquisition cost of the New Vessels and the related Hermes Premium;
WHEREAS, the Lenders and the lenders
under the Other Term Loan Facility have agreed to commit to provide the Term Loan Facilities in an aggregate principal amount of up to €126,075,000 subject to and upon the terms and conditions set forth herein and in the Other Term Loan
Facility; and
WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are willing to make
available to the Borrower the Jade Term Loan Facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1.
Definitions and Accounting Terms
.
1.01
Defined Terms
. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms
defined) and references to this Agreement or any other document (or to any specified provision of this Agreement or any other document) shall be construed as references to this Agreement, that provision or that document as from time to time amended,
restated, supplemented and/or novated:
“
Acceptable Bank
” means (a) a bank or financial institution
which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A2 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency; or (b) any other
bank or financial institution approved by each Agent.
“
Acceptable Flag Jurisdiction
” shall mean the Bahamas,
Bermuda, Panama, the Marshall Islands, the United States or such other flag jurisdiction as may be acceptable to the Required Lenders in their reasonable discretion.
“
Acquisition
” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Capital Stock of any Person or otherwise causing any Person to become a Subsidiary of a Borrower, or
(c) a merger, amalgamation or consolidation or any other combination with another Person.
“
Adjusted Construction
Price
” shall mean, for each New Vessel, the sum of the Initial Construction Price of such New Vessel and the total permitted increases to the Initial Construction Price of such New Vessel pursuant to Permitted Change Orders (it being
understood that the Final Construction Price may exceed the Adjusted Construction Price).
“
Affiliate
” shall
mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person;
provided
,
however
, that for purposes of Section 10.05, an
Affiliate of the Parent or any of its Subsidiaries, as applicable, shall include any Person that directly or indirectly owns more than 10% of any class of the Capital Stock of the Parent or such Subsidiary, as applicable, and any officer or director
of the Parent or such Subsidiary. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary contained above, for purposes of Section 10.05, neither the Facility Agent, nor the Collateral Agent, nor the Joint Lead Arrangers nor any
Lender (or any of their respective affiliates) shall be deemed to constitute an Affiliate of the Parent or its Subsidiaries in connection with the Credit Documents or its dealings or arrangements relating thereto.
“
Affiliate Transaction
” shall have the meaning provided in Section 10.05.
“
Agent
” or “
Agents
” shall mean, individually and collectively, the Facility Agent, the Collateral
Agent, the Delegate Collateral Agent, the Documentation Agent and the Hermes Agent.
“
Agreement
” shall mean
this Credit Agreement, as modified, supplemented, amended, restated or novated from time to time.
-2-
“
Aggregate Initial Construction Price
” shall mean the sum of the Initial
Construction Price for Vessel 1 and the Initial Construction Price for Vessel 2.
“
Apollo
” shall mean Apollo
Management, L.P., and its Affiliates.
“
Applicable Margin
” shall mean a percentage per annum equal to 1.60%.
“
Appraised Value
” of the Collateral Vessel at any time shall mean the average of the fair market value of
the Collateral Vessel on an individual charter free basis as set forth on the appraisals most recently delivered to, or obtained by, the Facility Agent prior to such time pursuant to Section 9.01(c).
“
Approved Appraisers
” shall mean Brax Shipping AS; Barry Rogliano Salles S.A., Paris; Clarksons, London; R.S. Platou
Shipbrokers, A.S., Oslo; and Fearnsale, a division of Astrup Fearnley AS, Oslo.
“
Approved Stock Exchange
”
shall mean the New York Stock Exchange, NASDAQ or such other stock exchange in the United States of America, the United Kingdom or Hong Kong as is approved in writing by the Facility Agent or, in each case, any successor thereto.
“
Assignment Agreement
” shall mean an Assignment Agreement substantially in the form of Exhibit K (appropriately
completed) or any other form agreed between the relevant assignor and assignee (and if required to be executed by the Borrower, the Borrower);
provided
that if such other form does not contain the undertaking set out in Clause 7 of Exhibit K
it shall not be a Creditor Accession Undertaking as defined in, and for the purposes of, the ECF Intercreditor Agreements.
“
Assignment of Charter and Earnings
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignments of Contracts
” shall have the meaning provided in Section 5.06(b).
“
Assignment of Insurances
” shall have the meaning provided in the definition of “Collateral and
Guaranty Requirements”.
“
Assignments of KfW Refund Guarantees
” shall have the meaning provided in
Section 5.06(b).
“
Bankruptcy Code
” shall have the meaning provided in Section 11.05(b).
“
Bareboat Charterer
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Basel II
” shall mean the “International Convergence of Capital Measurement and
Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
-3-
“
Borrower
” shall have the meaning provided in the first paragraph of this
Agreement.
“
Borrowing
” shall mean the borrowing of Loans from all the Lenders (other than any Lender which
has not funded its share of a Borrowing in accordance with this Agreement) having Commitments on a given date.
“
Borrowing Date
” shall have the meaning provided in Section 2.02.
“
Breakaway One
” shall mean Breakaway One, Ltd., a Bermuda company.
“
Breakaway One Facility
” shall mean that certain Credit Agreement dated as of the date hereof among the Parent as
guarantor, Breakaway One as borrower, various lenders party thereto, KfW IPEX-Bank GmbH, as facility agent, collateral agent and CIRR agent, Nordea Bank Norge ASA, as documentation agent, and Commerzbank AG, as Hermes agent.
“
Breakaway Two
” shall mean Breakaway Two, Ltd., a Bermuda company.
“
Breakaway Two Facility
” shall mean that certain Credit Agreement dated as of the date hereof among the Parent as
guarantor, Breakaway Two as borrower, various lenders party thereto, KfW IPEX-Bank GmbH, as facility agent, collateral agent and CIRR agent, Nordea Bank Norge ASA, as documentation agent, and Commerzbank AG, as Hermes agent.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Capital Stock
” means:
(1) in the case of a corporation,
corporate stock or shares;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or
limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“
Cash Balance
” shall mean, at any date of determination, the unencumbered and otherwise unrestricted cash and Cash Equivalents of the NCLC Group.
“
Cash Equivalents
” shall mean (i) securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (
provided
that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank
-4-
holding company having capital, surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by any Person,
(iii) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above,
(iv) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least B-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year
after the date of acquisition by any other Person, and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
“
CERCLA
” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may
be amended from time to time, 42 U.S.C. § 9601
et
seq.
“
Change of Control
”
shall mean (x) at any time when the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) is not listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing
shareholders of the Parent by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Permitted Holders in the aggregate do not, directly or indirectly, control the Parent and beneficially own, directly or indirectly,
at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or (y) at any time following the listing of the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) on an Approved Stock
Exchange:
|
|
(A)
|
owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Parent; or
|
|
|
(B)
|
has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the
Parent; and
|
at the same time as any of the events described in paragraphs (A) or (B) of this
definition have occurred and are continuing, the Permitted Holders in the aggregate do not, directly or indirectly, beneficially own at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or
|
|
(ii)
|
the Parent (or such parent company of the Parent) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Required Lenders,
|
(and, for the purpose of Section 11.16 “control” of any company, limited partnership or other legal entity (a
“body corporate”) controlled by a Permitted Holder means that one or more members of a Permitted Holder in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through
the ownership of more than 50% of the issued voting capital of that body corporate or by contract, trust or other arrangement).
-5-
“
Charterer’s Assignment and Subordination
” shall have the meaning
provided in the definition of “Collateral and Guaranty Requirements”.
“
Collateral
” shall mean all
property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Earnings and Insurance Collateral, the Construction
Risk Insurances in respect of each New Vessel, the Collateral Vessel, the Refund Guarantees in respect of each New Vessel, the Construction Contracts in respect of each New Vessel and all cash and Cash Equivalents at any time delivered as collateral
thereunder or as collateral required hereunder.
“
Collateral Agent
” shall have the meaning provided in the
first paragraph of this agreement, and shall include any successor thereto acting as mortgagee, security trustee or collateral agent for the Secured Creditors pursuant to the Security Documents.
“
Collateral and Guaranty Requirements
” shall mean with respect to the Collateral Vessel, the requirement that:
(i) (A) the Borrower shall have duly authorized, executed and delivered an Assignment of Charter and Earnings
substantially in the form of Exhibit F or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time, the “
Assignment of Charter and Earnings
”) and an Assignment of Insurances
substantially in the form of Exhibit G or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified, supplemented or amended from time to time, the “
Assignment of Insurances
”), in each case (to the extent incorporated
into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) with appropriate notices, acknowledgements and consents relating thereto and (B) the Borrower shall use its commercially reasonable efforts to
obtain an Assignment and Subordination Agreement from NCL (Bahamas) Ltd. (the “
Bareboat Charterer
”) substantially in the form of Exhibit P (as modified, supplemented or amended from time to time, the “
Charterer’s
Assignment and Subordination
”) with respect to the bareboat charter of the Collateral Vessel by the Bareboat Charterer, with (to the extent incorporated into or required by such Exhibit or otherwise agreed by the Borrower, the Bareboat
Charterer and the Collateral Agent) appropriate notices, acknowledgements and consents relating thereto, together covering all of the Borrower’s, and with respect to the Charterer’s Assignment and Subordination, the Bareboat
Charterer’s, present and future Earnings and Insurance Collateral, in each case together with:
(a) proper
financing statements (Form UCC-1 or the equivalent) fully prepared for filing in accordance with the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable
to perfect or give notice to third parties of, as the case may be, the security interests purported to be created by the Assignment of Charter and Earnings, the Assignment of Insurances and the Charterer’s Assignment and Subordination; and
-6-
(b) certified copies of lien search results (Form UCC11) listing all
effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida, together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law)
fully prepared for filing if required by applicable law to terminate financing statement which covers the Collateral except to the extent evidencing Permitted Liens.
(ii) the Borrower shall have duly authorized, executed and delivered, and caused to be registered in the appropriate vessel registry a mortgage and a deed of covenants (as modified, amended or
supplemented from time to time in accordance with the terms thereof and hereof, and together with the Vessel Mortgage delivered pursuant to the definition of Flag Jurisdiction Transfer, the “
Vessel Mortgage
”), substantially in the
form of Exhibit H or otherwise reasonably acceptable to the Joint Lead Arrangers with respect to the Collateral Vessel, and the Vessel Mortgage shall be effective to create in favor of the Collateral Agent a legal, valid and enforceable security
interest, in and Lien upon the Collateral Vessel, which shall be prior to any other Liens and security interest in the Collateral Vessel other than Permitted Liens (which Permitted Liens shall include, for the avoidance of doubt, the Liens pursuant
to the Senior Loan Agreements);
(iii) all filings, deliveries of notices and other instruments and other actions by the
Credit Parties and/or the Collateral Agent necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve the security interests described in clauses (i) through and including (iii) above shall have been
duly effected and the Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent; and
(iv) the Facility Agent shall have received each of the following:
(a) certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed
certificates and indicating) the registered ownership of the Collateral Vessel by the Borrower; and
(b) the
results of maritime registry searches with respect to the Collateral Vessel, indicating that the Collateral Vessel has been deleted from all new building registers and that there are no record liens other than Liens in favor of the Collateral Agent
and/or the Lenders and Permitted Liens; and
(c) class certificates reasonably satisfactory to it from Det
Norske Veritas or another classification society listed on Schedule 8.21 hereto (or another internationally recognized classification society reasonably acceptable to the Facility Agent), indicating that the Collateral Vessel meets the criteria
specified in Section 8.21; and
(d) certified copies of all Management Agreements; and
(e) certified copies of all ISM and ISPS Code documentation for the Collateral Vessel; and
-7-
(f) the Facility Agent shall have received a report, in substantially the
form of Exhibit B or otherwise reasonably acceptable to the Facility Agent, from BankAssure or another firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained (or to be
maintained) by the Credit Parties in respect of the Collateral Vessel, together with a certificate in substantially the form of Exhibit C or otherwise reasonably acceptable to the Facility Agent, from another broker certifying that such insurances
(i) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds and (ii) include the Required
Insurance. In addition, the Borrower shall reimburse the Facility Agent for the reasonable and documented costs of procuring customary mortgagee interest insurance and additional perils insurance in connection with the Collateral Vessel as
contemplated by Section 9.03 (including Schedule 9.03).
“
Collateral Disposition
” shall mean
(i) the sale, lease, transfer or other disposition of the Collateral Vessel by the Borrower to any Person (it being understood that a Permitted Chartering Arrangement is not a Collateral Disposition) or the sale of 100% of the Capital Stock of
the Borrower or (ii) any Event of Loss of the Collateral Vessel.
“
Collateral Vessel
” shall mean the
vessel owned by the Borrower and known on the date hereof as the NORWEGIAN JADE (IMO 9304057).
“
Commitment
”
shall mean, for each Lender, at any time, an amount equal to such Lender’s Percentage of the Total Allocable Commitments. The maximum Commitment of each Lender on the Effective Date is set forth on Schedule 1.01(a).
“
Commitment Letter
” shall have the meaning provided in Section 14.09.
“
Commitment Termination Date
” shall mean December 8, 2014.
“
Commitment Commission
” shall have the meaning provided in Section 3.01(a).
“
Consolidated Debt Service
” shall mean, for any relevant period, the sum (without double counting), determined in
accordance with GAAP, of:
(i) the aggregate principal payable or paid during such period on any Indebtedness
for Borrowed Money of any member of the NCLC Group, other than:
(a) principal of any such Indebtedness for
Borrowed Money prepaid at the option of the relevant member of the NCLC Group or by virtue of “cash sweep” or “special liquidity” cash sweep provisions (or analogous provisions) in any debt facility of the NCLC Group;
(b) principal of any such Indebtedness for Borrowed Money prepaid upon a sale or an Event of Loss of any vessel owned or
leased under a capital lease by any member of the NCLC Group; and
-8-
(c) balloon payments of any such Indebtedness for Borrowed Money payable
during such period (and for the purpose of this paragraph (c) a “balloon payment” shall not include any scheduled repayment installment of such Indebtedness for Borrowed Money which forms part of the balloon);
(ii) Consolidated Interest Expense for such period;
(iii) the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues
to any shareholder of any member of the NCLC Group (other than the Parent, or one of its wholly owned Subsidiaries) or any Dividends other than the tax distributions described in Section 10.03(ii) in each case paid during such period; and
(iv) all rent under any capital lease obligations by which the Parent, or any consolidated Subsidiary is bound
which are payable or paid during such period and the portion of any debt discount that must be amortized in such period,
as calculated in
accordance with GAAP and derived from the then latest consolidated unaudited financial statements of the NCLC Group delivered to the Facility Agent in the case of any period ending at the end of any of the first three fiscal quarters of each fiscal
year of the Parent and the then latest audited consolidated financial statements (including all additional information and notes thereto) of the Parent and its consolidated Subsidiaries together with the auditors’ report delivered to the
Facility Agent in the case of the final quarter of each such fiscal year.
“
Consolidated EBITDA
” shall mean,
for any relevant period, the aggregate of:
(i) Consolidated Net Income from the Parent’s operations for
such period; and
(ii) the aggregate amounts deducted in determining Consolidated Net Income for such period in
respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for such period.
“
Consolidated Interest Expense
” shall mean, for any relevant period, the consolidated interest expense
(excluding capitalized interest) of the NCLC Group for such period.
“
Consolidated Net Income
” shall mean,
for any relevant period, the consolidated net income (or loss) of the NCLC Group for such period as determined in accordance with GAAP.
“
Construction Contract
” shall mean the Vessel 1 Construction Contract and/or the Vessel 2 Construction Contract, as applicable.
“
Construction Risk Insurances
” shall mean any and all insurance policies related to a Construction Contract and the
construction of a New Vessel.
-9-
“
Credit Documents
” shall mean this Agreement, Sections 7 and 8 of the
Commitment Letter, each Security Document, the Security Trust Deed, any Transfer Certificate, any Assignment Agreement, each Intercreditor Agreement and, after the execution and delivery thereof, each additional guaranty or additional security
document executed pursuant to Section 9.10.
“
Credit Document Obligations
” shall mean, except to the
extent consisting of obligations, liabilities or indebtedness with respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness (including, without limitation, principal, premium, interest, fees and indemnities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding)) of each
Credit Party to the Lender Creditors (
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned obligations, liabilities and indebtedness shall arise only for such Lenders (in such capacity) in respect of Loans
and/or Commitments), whether now existing or hereafter incurred under, arising out of, or in connection with this Agreement and the other Credit Documents to which such Credit Party is a party (including, in the case of each Credit Party that is a
Guarantor, all such obligations, liabilities and indebtedness of such Credit Party under the Parent Guaranty) and the due performance and compliance by such Credit Party with all of the terms, conditions and agreements contained in this Agreement
and in such other Credit Documents.
“
Credit Party
” shall mean the Borrower, the Parent, each Subsidiary of
the Parent that owns a direct interest in the Borrower, until the Vessel 1 Delivery Date, Breakaway One and, until the Vessel 2 Delivery Date, Breakaway Two.
“
Default
” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
“
Defaulting Lender
” shall mean any Lender with respect to which a Lender Default is in effect.
“
Delegate Collateral Agent
” shall mean Deutsche Schiffsbank Aktiengesellschaft in its capacity as trustee for the
Secured Creditors with respect to the Trust Property Delegated (as defined in the Security Trust Deed) pursuant to the Security Trust Deed.
“
Delivery Date
” shall mean the Vessel 1 Delivery Date and/or the Vessel 2 Delivery Date, as applicable.
“
Discharged Rights and Obligations
” shall have the meaning provided in Section 13.06(c).
“
Dispute
” shall have the meaning provided in Section 14.07(a).
-10-
“
Disqualified Stock
” means, with respect to any Person, any Capital Stock
of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a
change of control or asset sale),
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock of
such Person, or
(3) is redeemable at the option of the holder thereof, in whole or in part (other than solely
as a result of a change of control or asset sale), in each case prior to 91 days after the later of the Tranche A Loan Maturity Date and the Tranche B Loan Maturity Date;
provided
,
however
,
that only the portion of
Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided
,
however
, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock
solely because it may be required to be repurchased by the Parent in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided
,
further
,
that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“
Disruption Event
” means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each
case, required to operate in order for payments to be made in connection with this Agreement (or otherwise in order for the transactions contemplated by the Credit Documents to be carried out) which disruption is not caused by, and is beyond the
control of, any of the parties to this Agreement; or
(b) the occurrence of any other event which results in a
disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this Agreement preventing such party, or any other party to this Agreement:
(i) from performing its payment obligations under the Credit Documents; or
(ii) from communicating with other parties to this Agreement in accordance with the terms of the Credit Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations
are disrupted.
-11-
“
Dividend
” shall mean, with respect to any Person, that such Person or any
Subsidiary of such Person has declared or paid a dividend or returned any equity capital to its stockholders, partners or members or the holders of options or warrants issued by such Person with respect to its Capital Stock or membership interests
or authorized or made any other distribution, payment or delivery of property (other than common stock or the right to purchase any of such stock of such Person) or cash to its stockholders, partners or members or the holders of options or warrants
issued by such Person with respect to its Capital Stock or membership interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its Capital Stock or any other
Capital Stock outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the Capital Stock or any other Equity Interests of such Person outstanding on or after the Effective Date (or any options or warrants
issued by such Person with respect to its Capital Stock or other Equity Interests). Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes.
“
Documentation Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
“
Dollars
” and the sign “
$
” shall each mean lawful money of the United States.
“
Dollar Availability
” shall mean, on any Borrowing Date, a Dollar amount equal to the excess of:
(x) the aggregate principal amount of Existing Jade Loans that the Borrower has repaid from and after the Effective Date
and up to and including such Borrowing Date as determined pursuant to the schedule of repayments of Existing Jade Loans as set forth on
Schedule 1.01(b)
(“
Existing Jade Scheduled Repayments
”) (subject to Dollar-to-Dollar
reduction to the extent the Borrower shall not have made the Existing Jade Scheduled Repayments as of such Borrowing Date);
provided
that such amount may be increased by the amount of voluntary and mandatory prepayments (other than of the
Existing Jade Scheduled Repayments) of Existing Jade Loans that the Borrower has made on or prior to such Borrowing Date in 2011, 2012, 2013 and 2014, minus
(y) the Dollar amount of Loans borrowed prior to such Borrowing Date under this Agreement.
“
Dollar Maximum Amount
” shall mean $130,194,139.00, or such greater amount as shall be agreed in writing by the Facility Agent, Hermes and the Parent.
“
Dollar Equivalent
” shall mean, with respect to the Euro denominated Commitments being utilized on a Borrowing Date, the
amount calculated by applying (x) in the event that the Borrower and/or the Parent have entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be partially or wholly financed by the Loans to be disbursed
on such Borrowing Date, the EUR/USD weighted average rate with
-12-
respect to such Borrowing Date (i) as notified by the Borrower to the Facility Agent in the Borrowing Notice at least three Business Days prior to the relevant Borrowing Date,
(ii) which EUR/USD weighted average rate for any particular set of Earmarked Foreign Exchange Arrangements shall take account of all applicable foreign exchange spot, forward and derivative arrangements, including collars, options and the like,
entered into in respect of such Borrowing Date and (iii) for which the Borrower has provided evidence to the Facility Agent to determine which foreign exchange arrangements (including spot transactions) will be the Earmarked Foreign Exchange
Arrangements that shall apply to such Borrowing Date and (y) in the event that the Borrower and/or the Parent have not entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be partially or wholly funded
by the Loans to be disbursed on such Borrowing Date, the Spot Rate applicable to such Borrowing Date.
“
Dormant
Subsidiary
” means a Subsidiary that owns assets in an amount equal to no more than $5,000,000 or is dormant or otherwise inactive.
“
Earmarked Foreign Exchange Arrangements
” shall mean the Euro/Dollar foreign exchange arranged by the Borrower and/or the Parent in connection with an installment payment to be partially
or wholly financed by the Loans to be disbursed on the date on which such installment payment is to be made.
“
Earnings and Insurance Collateral
” shall mean all “Earnings” and “Insurances”, as the case may be,
as defined in the respective Assignment of Charter and Earnings, Charterer’s Assignment and Subordination, and the Assignment of Insurances.
“
ECF Borrowers
” shall mean Breakaway One with respect to the Breakaway One Facility and Breakaway Two with respect to the Breakaway Two Facility.
“
ECF Collateral
” shall mean all property (whether real or personal) with respect to which any security interest shall
have been granted (or purported to be granted) pursuant to the Assignments of Contracts.
“
ECF Loans
” shall
mean loans made to an ECF Borrower under the relevant Export Credit Facility.
“
ECF Intercreditor Agreements
”
shall mean the Tranche A Intercreditor Agreement and the Tranche B Intercreditor Agreement.
“
Effective Date
”
has the meaning specified in Section 14.09.
“
Eligible Transferee
” shall mean and include a commercial
bank, insurance company, financial institution, fund or other Person which regularly purchases interests in loans or extensions of credit of the types made pursuant to this Agreement.
“
Environmental Approvals
” shall have the meaning provided in Section 8.17(b).
-13-
“
Environmental Claims
” shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law
(hereafter, “
Claims
”), including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the
environment due to the presence of Hazardous Materials.
“
Environmental Law
” shall mean any applicable
Federal, state, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, to the extent binding on the Parent or any of its Subsidiaries, relating to the environment, and/or Hazardous Materials,
including, without limitation, CERCLA; OPA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et
seq.
; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et
seq.
; the Occupational
Safety and Health Act, 29 U.S.C. § 651
et
seq.
(to the extent it regulates occupational exposure to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“
Environmental Release
” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migration into the environment.
“
Equity Interests
”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“
Euro
” and the sign “
€
” shall each mean single currency in the member states of the European
Communities that adopt or have adopted the Euro as its lawful currency under the legislation of the European Union for European Monetary Union.
“
Eurodollar Rate
” shall mean with respect to each Interest Period for a Loan, the offered rate (rounded upward to the nearest 1/100 of 1%) for deposits of Dollars for a period equivalent
to such period at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of such period as is displayed on Reuters LIBOR 01 Page (or such other service as may be nominated by the British Bankers’ Association as the
information vendor for displaying the London Interbank Offered Rates of major banks in the London Interbank Market) (the “
Screen Rate
”),
provided
that if on such date no such rate is so displayed, the Eurodollar Rate for such
period shall be the arithmetic average (rounded upward to the nearest 1/100 of 1%) of the rate quoted to the Facility Agent by the Reference Banks for deposits of Dollars in an amount approximately equal to the amount in relation to which the
Eurodollar Rate is to be determined for a period equivalent to such applicable Interest Period by the prime banks in the London interbank Eurodollar market at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of
such period, in each case rounded upward to the nearest 1/100 of 1%.
-14-
“
Event of Default
” shall have the meaning provided in Section 11.
“
Event of Loss
” shall mean any of the following events: (x) the actual or constructive total loss of
the Collateral Vessel or the agreed or compromised total loss of the Collateral Vessel; or (y) the capture, condemnation, confiscation, requisition (but excluding any requisition for hire by or on behalf of any government or governmental
authority or agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency), purchase, seizure or forfeiture of, or any taking of title to, the Collateral Vessel. An Event of Loss shall be
deemed to have occurred: (i) in the event of an actual loss of the Collateral Vessel, at the time and on the date of such loss or if such time and date are not known at noon Greenwich Mean Time on the date which the Collateral Vessel was last
heard from; (ii) in the event of damage which results in a constructive or compromised or arranged total loss of the Collateral Vessel, at the time and on the date on which notice claiming the loss of the Collateral Vessel is given to the
insurers; or (iii) in the case of an event referred to in clause (y) above, at the time and on the date on which such event is expressed to take effect by the Person making the same. Notwithstanding the foregoing, if the Collateral Vessel
shall have been returned to the Borrower or any Subsidiary of the Borrower following any event referred to in clause (y) above prior to the date upon which payment is required to be made under Section 4.02(b) hereof, no Event of Loss shall
be deemed to have occurred by reason of such event so long as the requirements set forth in Section 9.10 have been satisfied.
“
Excluded Taxes
” shall have the meaning provided in Section 4.04(a).
“
Existing Jade Facility
” shall mean that certain secured loan agreement dated 20 April 2004 between the Borrower, the several banks party thereto as arrangers and underwriters, the
several banks party thereto as lenders, HSBC Bank plc as agent, Commerzbank Aktiengesellschaft as Hermes agent and HSBC Bank plc as trustee, including all amendments, amendments and restatements, supplements, novations or other modifications
thereto.
“
Existing Jade Loans
” shall mean all loans and other advances made to the Borrower under the
Existing Jade Facility.
“
Existing Jade Scheduled Repayments
” shall have the meaning provided in the
definition of “Dollar Availability”.
“
Existing Lender
” shall have the meaning provided in
Section 13.01.
“
Export Credit Documents
” shall mean the “Credit Documents” as defined in the
Export Credit Facilities.
“
Export Credit Facilities
” shall mean the Breakaway One Facility and the Breakaway
Two Facility.
“
Facility Agent
” shall have the meaning provided in the first paragraph of this Agreement, and
shall include any successor thereto.
-15-
“
Facility Office
” means (a) in respect of a Lender, the office or
offices notified by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its
obligations under this Agreement; or (b) in respect of any other Lender Creditor, the office in the jurisdiction in which it is resident for tax purposes.
“
Final Construction Price
” shall mean the actual final construction price of a New Vessel.
“
Flag Jurisdiction Transfer
” shall mean the transfer of the registration and flag of the Collateral Vessel from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction,
provided
that the following conditions are satisfied with respect to such transfer:
(i) On each Flag
Jurisdiction Transfer Date, the Borrower shall have duly authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry a Vessel Mortgage that is reasonably satisfactory in form and substance to the Facility Agent
with respect to the Collateral Vessel and such Vessel Mortgage shall be effective to create in favor of the Collateral Agent and/or the Lenders a legal, valid and enforceable first priority security interest, in and lien upon the Collateral Vessel,
subject only to Permitted Liens. All filings, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve such security interests shall have been duly effected and the
Collateral Agent shall have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent.
(ii) On each Flag Jurisdiction Transfer Date, to the extent that any Security Documents are released or discharged pursuant to Section 14.21(b), the Borrower shall have duly authorized, executed and
delivered corresponding Security Documents in favor of the Collateral Agent for the new Acceptable Flag Jurisdiction.
(iii) On each Flag Jurisdiction Transfer Date, the Facility Agent shall have received from counsel, an opinion addressed to the Facility Agent and each of the Lenders and dated such Flag Jurisdiction
Transfer Date, which shall (x) be in form and substance reasonably acceptable to the Facility Agent and (y) cover the recordation of the security interests granted pursuant to the Vessel Mortgage to be delivered on such date and such other
matters incident thereto as the Facility Agent may reasonably request.
(iv) On each Flag Jurisdiction Transfer
Date:
(A) The Facility Agent shall have received (x) certificates of ownership from appropriate
authorities showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of the Collateral Vessel transferred on such date by the Borrower and (y) the results of maritime registry searches with
respect to the Collateral Vessel transferred on such date, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens.
(B) The Facility Agent shall have received a report, in form and scope reasonably satisfactory to the Facility Agent, from
a firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the
-16-
insurance maintained by the Borrower in respect of the Collateral Vessel transferred on such date, together with a certificate from another broker certifying that such insurances (i) are
placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Facility Agent and/or the
Lenders as mortgagee and (ii) conform with the Required Insurance applicable to the Collateral Vessel.
(v) On or prior to each Flag Jurisdiction Transfer Date, the Facility Agent shall have received a certificate, dated the
Flag Jurisdiction Transfer Date, signed by any one of the chairman of the board, the president, any vice president, the treasurer or an authorized manager, member, general partner, officer or attorney-in-fact of the Borrower, certifying that
(A) all necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the Flag Jurisdiction Transfer being consummated on such date and otherwise referred to herein shall have been obtained and
remain in effect or that no such approvals and/or consents are required, (B) there exists no judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions upon such Flag Jurisdiction Transfer or the other
related transactions contemplated by this Agreement and (C) copies of resolutions approving the Flag Jurisdiction Transfer of the Borrower and any other related matters the Facility Agent may reasonably request.
(vi) On each Flag Jurisdiction Transfer Date, the Collateral and Guaranty Requirements for the Transferred Collateral
Vessel shall have been satisfied or waived by the Facility Agent for a specific period of time.
“
Flag Jurisdiction
Transfer Date
” shall mean the date on which a Flag Jurisdiction Transfer occurs.
“
Free Liquidity
”
shall mean, at any date of determination, the aggregate of the Cash Balance and any Commitments under this Agreement or any other amounts available for drawing under other revolving or other credit facilities of the NCLC Group, which remain undrawn,
could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six months.
“
GAAP
” shall have the meaning provided in Section 14.06(a).
“
Grace Period
” shall have the meaning provided in Section 11.05(c).
“
Guarantor
” shall mean Parent.
“
Hazardous Materials
” shall mean: (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,”
or “pollutants,” or words of similar import, under any
-17-
applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under Environmental Laws.
“
Hermes
” shall mean the Federal Republic of Germany represented by the Federal Ministry of Economics and
Technology (
Bundesministerium für Wirtschaft und Technologie
) represented by Euler Hermes Kreditversicherungs-AG and PriceWaterhouseCoopers Wirtschaftsprüfungsgesellschaft AG.
“
Hermes Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor
thereto, acting as attorney-in-fact for the Lenders with respect to the Hermes Cover to the extent described in this Agreement.
“
Hermes Cover
” shall mean the export credit guarantee (
Exportkreditgarantie
) on the terms of Hermes’
Declaration of Guarantee (
Gewährleistungs-Erklärung
) for [*] of the principal amount of the Loans and any interests and secondary financing costs of the Federal Republic of Germany acting through Euler Hermes Kreditversicherungs-AG
for the period of the Loans on the terms and conditions applied for by the Lenders, and shall include any successor thereto (it being understood that the Hermes Cover shall be issued on the basis of Hermes’ applicable Hermes guidelines
(
Richtlinien
) and general terms and conditions (
Allgemeine Bedingungen
)).
“
Hermes Insurance
Premium
” shall mean the amount payable in Euro by the Borrower and the Jewel Borrower to Hermes through the Hermes Agent in respect of the Hermes Cover relating to the Term Loan Facilities, which shall not in the aggregate for the Jade Term
Loan Facility and the Other Term Loan Facility exceed [*].
“
Hermes Issuing Fees
” shall mean the [*] payable
in Euro by the Borrower to Hermes through the Hermes Agent by way of handling fees in respect of the Hermes Cover.
“
Hermes Premium
” shall mean the aggregate of the Hermes Issuing Fees and the Hermes Insurance Premium.
“
Impaired Agent
” shall mean an Agent at any time when:
|
|
(i)
|
it has failed to make (or has notified a party to this Agreement that it will not make) a payment required to be made by it under the Credit Documents by the due date
for payment;
|
|
|
(ii)
|
such Agent otherwise rescinds or repudiates a Credit Document;
|
|
|
(iii)
|
(if such Agent is also a Lender) it is a Defaulting Lender; or
|
|
|
(iv)
|
an Insolvency Event has occurred and is continuing with respect to such Agent
|
unless, in the case of paragraph (i) above: (a) its failure to pay is caused by administrative or technical error or a Disruption Event, and payment is made within five Business Days of its due
date; or (b) such Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
-18-
“
Indebtedness
” shall mean any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future, actual or contingent including, without limitation, pursuant to an Interest Rate Protection Agreement or Other Hedging Agreement.
“
Indebtedness for Borrowed Money
” shall mean Indebtedness (whether present or future, actual or contingent, long-term or
short-term, secured or unsecured) in respect of:
|
|
(i)
|
moneys borrowed or raised;
|
|
|
(ii)
|
the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing);
|
|
|
(iii)
|
the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases;
|
|
|
(iv)
|
the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of 180 days;
|
|
|
(v)
|
all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and
|
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|
(vi)
|
(without double counting) any guarantee of Indebtedness falling within paragraphs (i) to (v) above;
|
provided
that the following shall not constitute Indebtedness for Borrowed Money:
|
|
(a)
|
loans and advances made by other members of the NCLC Group which are subordinated to the rights of the Lenders;
|
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|
(b)
|
loans and advances made by any shareholder of the Parent which are subordinated to the rights of the Lenders on terms reasonably satisfactory to the Facility Agent; and
|
|
|
(c)
|
any liabilities of the Parent or any other member of the NCLC Group under any Interest Rate Protection Agreement or any Other Hedging Agreement or other derivative
transactions of a non-speculative nature.
|
“
Information
” shall have the meaning provided in
Section 8.10(a).
“
Initial Borrowing Dates
” shall mean the Tranche A Initial Borrowing Date and the
Tranche B Initial Borrowing Date.
-19-
“
Initial Construction Price
” shall mean for each New Vessel an amount of up
to €615,000,000 for the construction of such New Vessel in each case pursuant to the relevant Construction Contract, payable by the relevant ECF Borrower to the Yard through the four installments of the Initial Contract Price referred
to in Article 8, Clauses 2.1(i) through and including (iv) of each Construction Contract (each, a “
Pre-delivery Installment
”) and the installment of the Initial Contract Price referred to in Article 8,
Clause 2.1(v) of each Construction Contract.
“
Insolvency Event
” in relation to any of the parties
to this Agreement shall mean that such party:
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|
(i)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
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(ii)
|
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
|
(iii)
|
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
|
(iv)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it
in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
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(v)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or
entity not described in paragraph (iv) above and (a) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or (b) is not dismissed,
discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
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(vi)
|
has exercised in respect of it one or more of the stabilization powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency
proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
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(vii)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
-20-
|
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(viii)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets;
|
|
|
(ix)
|
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
|
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(x)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in
paragraphs (i) to (ix) above; or
|
|
|
(xi)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
“
Intercreditor Agreements
” shall mean the Jade Intercreditor Agreement and the ECF Intercreditor Agreements.
“
Interest Determination Date
” shall mean, with respect to any Loan, the second Business Day prior to the commencement of
any Interest Period relating to such Loan.
“
Interest Period
” shall have the meaning provided in
Section 2.07.
“
Interest Rate Protection Agreement
” shall mean any interest rate swap agreement,
interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its
Affiliate, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this Agreement.
“
Investments
” shall have the meaning provided in Section 10.04.
“
Jade Collateral
” shall mean all Collateral other than the ECF Collateral.
“
Jade Intercreditor Agreement
” shall mean the fourth deed of co-ordination between the Borrower, HSBC Bank plc as first mortgagee, DnB NOR Bank ASA as second mortgagee, DnB NOR Bank
ASA as third mortgagee and the Facility Agent as fourth mortgagee, substantially in the form of Exhibit M-3 or otherwise agreed by the parties thereto.
“
Jade Term Loan Facility
” shall have the meaning provided in the recitals hereto.
“
Joint Lead Arrangers
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
-21-
“
Lender
” shall mean each financial institution listed on Schedule 1.01(a),
as well as any Person which becomes a “
Lender
” hereunder pursuant to Section 13.
“
Lender
Creditors
” shall mean the Lenders holding from time to time outstanding Loans and/or Commitments, and the Agents, each in their respective capacities.
“
Lender Default
” shall mean, as to any Lender, (i) the wrongful refusal (which has not been retracted) of such Lender or the failure of such Lender to make available its portion of
any Borrowing, unless such failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three Business Days of its due date; (ii) such Lender having been deemed insolvent or having become the
subject of a takeover by a regulatory authority or with respect to which an Insolvency Event has occurred and is continuing; (iii) such Lender having notified the Facility Agent and/or any Credit Party (x) that it does not intend to comply
with its obligations under Section 2.01 in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under such Section or (y) of the events described in preceding clause (ii); or (iv) if such
Lender is a lender under an Export Credit Facility, such Lender not being in compliance with its refinancing obligations under its respective “Refinancing Agreement” under and as defined in either Export Credit Facility.
“
Lien
” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing);
provided
that in no event shall an operating lease be deemed to constitute a Lien.
“
Lim Family
” shall mean:
|
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(i)
|
the late Tan Sri Lim Goh Tong;
|
|
|
(iii)
|
his direct lineal descendants;
|
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|
(iv)
|
the personal estate of any of the above persons; and
|
|
|
(v)
|
any trust created for the benefit of one or more of the above persons and their estates.
|
“
Loan
” shall have the meaning provided in Section 2.01.
“
Management Agreements
” shall mean any agreements entered into by the Borrower with the Manager or such other commercial
manager and/or a technical manager (in each case reasonably acceptable to the Facility Agent, it being understood that NCL (Bahamas) Ltd. is acceptable) with respect to the management of the Collateral Vessel.
-22-
“
Manager
” shall mean the company providing commercial and technical
management and crewing services for the Collateral Vessel pursuant to the Management Agreements, which as of the first Initial Borrowing Date is NCL (Bahamas) Ltd., a company organized and existing under the laws of Bermuda.
“
Mandatory Costs
” means the percentage rate per annum calculated in accordance with
Schedule 1.01(c)
.
“
Market Disruption Event
” shall mean:
(i) at or about noon on the Interest Determination Date for the relevant Interest Period the Screen Rate is not available
and none or only one of the Lenders supplies a rate to the Facility Agent to determine the Eurodollar Rate for the relevant Interest Period; or
(ii) before 5:00 P.M. Frankfurt time on the Interest Determination Date for the relevant Interest Period, the Facility Agent receives notifications from Lenders the sum of whose Commitments and/or
outstanding Loans at such time equal at least 50% of the sum of the Total Allocable Commitment and/or aggregate outstanding Loans of the Lenders at such time that (x) the cost to such Lenders of obtaining matching deposits in the London
interbank Eurodollar market for the relevant Interest Period would be in excess of the Eurodollar Rate for such Interest Period or (y) such Lenders are unable to obtain funding in the London interbank Eurodollar market.
“
Material Adverse Effect
” shall mean the occurrence of anything since June 30, 2010 which has had or would
reasonably be expected to have a material adverse effect on (x) the property, assets, business, operations, liabilities, or condition (financial or otherwise) of the Parent and its subsidiaries taken as a whole, (y) the consummation of the
transactions hereunder, the acquisition of a New Vessel and the relevant Construction Contract, or (z) the rights or remedies of the Lenders, or the ability of the Parent and its relevant Subsidiaries to perform their obligations owed to the
Lenders and the Agents under this Agreement.
“
Materials of Environmental Concern
” shall have the meaning
provided in Section 8.17(a).
“
Moody’s
” shall mean Moody’s Investors Service, Inc. and its
successors.
“
NCLC Fleet
” shall mean the vessels owned by the companies in the NCLC Group.
“
NCLC Group
” shall mean the Parent and its Subsidiaries.
“
New Lender
” shall mean a Person who has been assigned the rights or transferred the rights and obligations of an
Existing Lender, as the case may be, pursuant to the provisions of Section 13.
“
New Vessels
” shall mean
Vessel 1 and Vessel 2.
-23-
“
Non-Defaulting Lender
” shall mean and include each Lender other than a
Defaulting Lender.
“
Notice of Borrowing
” shall have the meaning provided in Section 2.03.
“
Notice Office
” shall mean (x) in the case of the Facility Agent, the office of the Facility Agent located at
Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, Attention: Ship Finance, X2a4, Claudia Wenzel, fax: +49 69 7431 2944, email: claudia.wenzel@kfw.de or such other office as the Facility Agent may hereafter designate in writing as such
to the other parties hereto and (y) in the case of the Hermes Agent, the office of the Hermes Agent located at Kaiserplatz / Kaiserstr. 16, D-60311 Frankfurt am Main, Germany, Attention: Corporate Banking, Structured Export & Trade
Finance, Klaus-Dieter Schmedding, fax: +49 69 136 23742, email Klaus-dieter.schmedding@commerzbank.com (with an additional copy to exportfinance@commerzbank.com) or such other office as the Hermes Agent may hereafter designate in writing as such
to the other parties hereto.
“
OPA
” shall mean the Oil Pollution Act of 1990, as amended, 33 U.S.C. §
2701
et
seq.
“
Other Creditors
” shall mean any Lender or any Affiliate thereof and their
successors, transferees and assigns if any (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason), together with such Lender's or Affiliate's successors, transferees and assigns with which the Parent and/or the
Borrower enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Other
Hedging Agreement
” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its
Affiliates, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this Agreement and designed to protect against the fluctuations in currency or commodity values.
“
Other Obligations
” shall mean the full and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) owing by any Credit Party to the Other Creditors under, or with respect to
any Interest Rate Protection Agreement or Other Hedging Agreement, whether such Interest Rate Protection Agreement or Other Hedging Agreement is now in existence or hereafter arising, and the due performance and compliance by such Credit Party with
all of the terms, conditions and agreements contained therein.
“
Other Term Loan Credit Documents
” shall mean
collectively, the “Credit Documents” as defined in the Other Term Loan Facility.
“
Other Term Loan
Facility
” shall have the meaning provided in the recitals hereto.
-24-
“
Parent
” shall have the meaning provided in the first paragraph of this
Agreement.
“
Parent Guaranty
” shall mean the guaranty of the Parent pursuant to Section 15.
“
PATRIOT Act
” shall have the meaning provided in Section 14.09.
“
Payment Date
” shall mean the last Business Day of each December, March, June and September, commencing with December,
2010.
“
Payment Office
” shall mean the office of the Facility Agent located at Palmengartenstrasse 5-9, 60325
Frankfurt am Main, Germany, or such other office as the Facility Agent may hereafter designate in writing as such to the other parties hereto.
“
Percentage
” for each Lender shall equal the percentage set forth opposite each Lender’s name on Schedule 1.01(a) hereto as such percentage may be adjusted from time to time as a
result of assignments and/or transfers to or from such Lender pursuant to Sections 2.11 or 13.04(b).
“
Permitted
Change Orders
” shall mean change orders and similar arrangements under a Construction Contract which increase the relevant Initial Construction Price to the extent that the aggregate amount of such increases does not exceed [*] of such
Initial Construction Price (it being understood that the actual amount of change orders and similar arrangements may exceed [*] of such Initial Construction Price).
“
Permitted Chartering Arrangements
” shall mean:
|
|
(i)
|
any charter or other form of deployment (other than a demise or bareboat charter) of the Collateral Vessel made between members of the NCLC Group;
|
|
|
(ii)
|
any demise or bareboat charter of the Collateral Vessel made between members of the NCLC Group provided that (a) each of the Borrower and the charterer assigns the
benefit of any such charter or sub-charter to the Collateral Agent, (b) each of the Borrower and the charterer assigns its interest in the insurances and earnings in respect of the Collateral Vessel to the Collateral Agent, and (c) the
charterer agrees to subordinate its interests in the Collateral Vessel to the interests of the Collateral Agent as mortgagee of the Collateral Vessel, all on terms and conditions reasonably acceptable to the Collateral Agent;
|
|
|
(iii)
|
any charter or other form of deployment of the Collateral Vessel to a charterer that is not a member of the NCLC Group provided that no such charter or deployment shall
be made (a) on a demise or bareboat basis, or (b) for a period which, with the exercise of any options for extension, could be for longer than 13 months, or (c) other than at or about market rate at the time when the charter or
deployment is fixed; and
|
-25-
|
|
(iv)
|
any charter or other form of deployment in respect of the Collateral Vessel entered into after the Effective Date and which is permissible under the provisions of any
financing documents relating to the Collateral Vessel.
|
“
Permitted Holders
” shall mean
(i) the Lim Family (together or individually) and (ii) Apollo and any Person directly controlled by Apollo.
“
Permitted Liens
” shall have the meaning provided in Section 10.01.
“
Person
” shall mean any individual, partnership, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision, department or instrumentality thereof.
“
Pre-delivery
Installment
” shall have the meaning provided in the definition of Initial Construction Price.
“
Pro Rata
Share
” shall have the definition provided in Section 4.05.
“
Projections
” shall mean any
projections and any forward-looking statements (including statements with respect to booked business) of the NCLC Group furnished to the Lenders or the Facility Agent by or on behalf of any member of the NCLC Group prior to the Effective Date.
“
Qualified IPO
” means an initial public offering of the Parent or a parent company of the Parent in either
case on an Approved Stock Exchange resulting in at least [*] of equity (x) in the case of an initial public offering by a parent company of the Parent, being contributed to the Parent or (y) in the case of an initial public offering by the
Parent, sold by the Parent.
“
Reference Banks
” shall mean each Joint Lead Arranger.
“
Refund Guarantee
” shall mean a refund guarantee arranged by the Yard in respect of a Pre-delivery Installment and
provided by one or more financial institutions contemplated by the relevant Construction Contract, or by other financial institutions reasonably satisfactory to the Joint Lead Arrangers, as credit support for the Yard’s obligations thereunder.
“
Register
” shall have the meaning provided in Section 14.15.
“
Relevant Obligations
” shall have the meaning provided in Section 13.07(c)(ii).
“
Replaced Lender
” shall have the meaning provided in Section 2.11.
“
Replacement Lender
” shall have the meaning provided in Section 2.11.
“
Representative
” shall have the meaning provided in Section 4.05(d).
“
Required Insurance
” shall have the meaning provided in Section 9.03.
-26-
“
Required Lenders
” shall mean, at any time,
Non-Defaulting Lenders, the sum of whose outstanding Commitments and/or principal amount of Loans at such time represent an amount greater than
66-
2
/
3
% of the sum of the Total Allocable
Commitment (less the aggregate Commitments of all Defaulting Lenders at such time) and the aggregate principal amount of outstanding Loans (less the amount of outstanding Loans of all Defaulting Lenders at such time).
“
S&P
” shall mean Standard & Poor’s Rating Services, a division of the McGraw-Hill Companies, Inc., and
its successors.
“
Scheduled Repayment
” shall have the meaning provided in Section 4.02(a).
“
Screen Rate
” shall have the meaning specified in the definition of Eurodollar Rate.
“
Secured Creditors
” shall mean the “Secured Creditors” as defined in the Security Documents.
“
Secured Obligations
” shall mean (i) the Credit Document Obligations, (ii) the Other Obligations,
(iii) any and all sums advanced by any Agent in order to preserve the Collateral or preserve the Collateral Agent’s security interest in the Collateral on behalf of the Lenders, (iv) in the event of any proceeding for the collection
or enforcement of any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after an Event of Default shall have occurred and be continuing, the expenses in connection with retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder on behalf of the Lenders, together with reasonable attorneys’ fees and
court costs, and (v) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under the Security Documents.
“
Security Documents
” shall mean, as applicable, the Assignments of Contracts, the Assignment of Charter and Earnings, the Assignment of Insurances, the Charterer’s Assignment and
Subordination, the Assignments of KfW Refund Guarantees, the Vessel Mortgage, and, after the execution thereof, each additional security document executed pursuant to Sections 9.10 and/or 12.01(b).
“
Security Trust Deed
” shall mean the Security Trust Deed executed by, inter alia, the Borrower, the Guarantor, the
Collateral Agent, the Facility Agent, the Original Secured Creditors (as defined therein) and the Delegate Collateral Agent, and shall be substantially in the form of Exhibit N or otherwise reasonably acceptable to the Facility Agent.
“
Senior Loan Agreements
” shall have the meaning provided in the Jade Intercreditor Agreement, and shall include any
modifications, refinancings, replacements, novations and amendments thereof.
“
Specified Requirements
” shall
mean the requirements set forth in clauses (i)(A) and (i)(B) (excluding, for the avoidance of doubt, clauses (i)(a) or (i)(b)), (ii) and (iv)(f) of the definition of “Collateral and Guaranty Requirements.”
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“
Spot Rate
” shall mean the spot exchange rate quoted by the Facility
Agent equal to the weighted average of the rates on the actual transactions of the Facility Agent on the date two Business Days prior to the date of determination thereof (acting reasonably), which spot exchange rate shall be final and
conclusive absent manifest error.
“
Subsidiary
” shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% Equity Interest at the time.
“
Supervision Agreements
” shall mean any agreements (if any) entered or to be entered into between the Parent, as applicable, the Borrower and a Supervisor providing for the construction
supervision of the relevant New Vessel, the terms and conditions of which shall be in form and substance reasonably satisfactory to the Facility Agent.
“
Supervisor
” shall have the meaning provided in the Construction Contracts.
“
Tax Benefit
” shall have the meaning provided in Section 4.04(c).
“
Taxes
” and “
Taxation
” shall have the meaning provided in Section 4.04(a).
“
Term Loan Facilities
” shall have the meaning provided in the recitals hereto.
“
Test Period
” shall mean each period of four consecutive fiscal quarters then last ended, in each case taken as one accounting period.
“
Third Party
” shall mean any Person or group of Persons acting in concert who or which does not include a member of the
Lim Family or Apollo.
“
Total Allocable Commitment
” shall mean, at any time, an amount equal to 50% of the
Total Commitment at such time;
provided
that, at any time and from time to time after the Effective Date, the Parent may reallocate portions of the then applicable Total Commitment between this Agreement and the Other Term Loan Facility in
its own discretion by giving the Facility Agent 5 Business Days’ written notice thereof;
provided
that, at no time shall the sum of the Total Allocable Commitment under this Agreement and the “Total Allocable Commitment” (under
and as defined in the Other Term Loan Facility) exceed the Total Commitment at such time.
“
Total
Capitalization
” shall mean, at any date of determination, the Total Net Funded Debt
plus
the consolidated stockholders’ equity of the NCLC Group at such date determined in accordance with GAAP and derived from the then latest
unaudited consolidated financial statements of the NCLC Group delivered to the Facility Agent in the case of the first three quarters of each fiscal year and the then latest audited consolidated financial statements of the NCLC Group delivered to
the Facility Agent in the case of each fiscal year;
provided
it is understood that the effect of any impairment of intangible assets shall be added back to stockholders’ equity.
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“
Total Commitment
” shall mean, at any time, an amount denominated in Euro
equal to the lesser of (i) €126,075,000 and (ii) the sum of (x) 10% of the Aggregate Initial Construction Price and (y) 100% of the aggregate amount of the Hermes Premium payable in respect of this Agreement and the Other
Term Loan Facility, as such Total Commitment may be reduced pursuant to Sections 3.02, 3.03 and 4.02 of this Agreement and the Other Term Loan Facility.
“
Total Net Funded Debt
” shall mean, as at any relevant date:
(i) Indebtedness for Borrowed Money of the NCLC Group on a consolidated basis; and
(ii) the amount of any Indebtedness for Borrowed Money of any person which is not a member of the NCLC Group but which is guaranteed by a member of the NCLC Group as at such date;
less
an amount equal to any Cash Balance as at such date;
provided
that any Commitments and other amounts available for
drawing under other revolving or other credit facilities of the NCLC Group which remain undrawn shall not be counted as cash or indebtedness for the purposes of this Agreement.
“
Tranche A Borrowing Date
” shall mean a Borrowing Date in respect of Tranche A Loans.
“
Tranche A Initial Borrowing Date
” shall mean the date occurring on or after the Effective Date on which the initial
Borrowing of Tranche A Loans occurs.
“
Tranche A Intercreditor Agreement
” shall mean the intercreditor deed
executed by
inter alia
, (a) each Lender, each other Secured Creditor, the Collateral Agent, the Documentation Agent and the Hermes Agent, (b) each lender, each other secured creditor, the collateral agent, the documentation agent,
the Hermes agent and the borrower under the Breakaway One Facility, (c) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent and the borrower under the Other Term Loan Facility and
(d) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by the Borrower and the Guarantor substantially in the form of Exhibit M-1.
“
Tranche A Loan
” shall have the meaning provided in Section 2.01(b).
“
Tranche A Loan Maturity Date
” shall mean the third anniversary of the Vessel 1 Delivery Date.
“
Tranche B Borrowing Date
” shall mean a Borrowing Date in respect of Tranche B Loans.
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“
Tranche B Initial Borrowing Date
” shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Tranche B Loans occurs.
“
Tranche B Intercreditor
Agreement
” shall mean the intercreditor deed executed by
inter alia
, (a) each Lender, each other Secured Creditor, the Collateral Agent, the Documentation Agent and the Hermes Agent, (b) each lender, each other secured
creditor, the collateral agent, the documentation agent, the Hermes agent and the borrower under the Breakaway Two Facility, (c) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent and the
borrower under the Other Term Loan Facility and (d) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by the Borrower and the Guarantor substantially in the form of Exhibit M-2.
“
Tranche B Loan
” shall have the meaning provided in Section 2.01(b).
“
Tranche B Loan Maturity Date
” shall mean the third anniversary of the Vessel 2 Delivery Date.
“
Transaction
” shall mean collectively (i) the execution, delivery and performance by each Credit Party of the
Credit Documents to which it is a party, the incurrence of Loans on each Borrowing Date and the use of proceeds thereof, (ii) the execution, delivery and performance by the relevant credit parties party to the Other Term Loan Credit Documents
to which they are a party, the incurrence of the loans thereunder and the use of proceeds thereof, (iii) the execution, delivery and performance by the relevant credit parties party to the Export Credit Documents to which they are a party, the
incurrence of the loans thereunder and the use of proceeds thereof and (iv) the payment of all fees and expenses in connection with the foregoing.
“
Transfer Certificate
” means a certificate substantially in the form set out in Exhibit E or any other form agreed between the Facility Agent and the Parent.
“
UCC
” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
“
United States
” and “
U.S.
” shall each mean the United States of America.
“
Vessel 1
” shall mean the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional
hull number S.678 to be constructed by the Yard pursuant to the Vessel 1 Construction Contract.
“
Vessel 1 Assignment
of Contracts
” shall have the meaning provided in Section 5.06(a).
“
Vessel 1 Assignment of KfW Refund
Guarantee
” shall have the meaning provided in Section 5.06(a).
“
Vessel 1 Construction
Contract
” shall mean the Shipbuilding Contract (in Relation to Vessel 1), dated as of 24 September, 2010, among Breakaway One, the Parent and the Yard, as such Shipbuilding Contract may be amended, modified or supplemented from time to
time in accordance with the terms thereof and hereof.
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“
Vessel 1 Delivery Date
” shall mean the date of delivery of Vessel 1 to
Breakaway One, which is currently scheduled to occur in April 2013.
“
Vessel 2
” shall mean the post-panamax
luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S-692 to be constructed by the Yard pursuant to the Vessel 2 Construction Contract.
“
Vessel 2 Assignment of Contracts
” shall have the meaning provided in Section 5.06(b).
“
Vessel 2 Assignment of KfW Refund Guarantee
” shall have the meaning provided in Section 5.06(b).
“
Vessel 2 Construction Contract
” shall mean the Shipbuilding Contract (in relation to Vessel 2), dated as of
September 24, 2010, among the Breakaway Two, the Parent and the Yard as such Shipbuilding Contract may be amended, modified or supplemented from time to time in accordance with the terms thereof and hereof.
“
Vessel 2 Delivery Date
” shall mean the date of delivery of Vessel 2 to Breakaway Two, which is currently scheduled to
occur in April 2014.
“
Vessel Mortgage
” shall have the meaning provided in the definition of “Collateral
and Guaranty Requirements”.
“
Vessel Value
” shall have the meaning set forth in Section 10.08.
“
Yard
” shall mean Meyer Werft GmbH, Papenburg/Germany, the shipbuilder constructing the New Vessels pursuant
to the Construction Contracts.
SECTION 2.
Amount and Terms of Credit Facility
.
2.01
The Commitments
. (a) Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make
on and after the first Initial Borrowing Date and prior to the Commitment Termination Date and at the times specified in Section 2.02 term loans to the Borrower (each a “
Loan
” and collectively the “
Loans
”),
which Loans (i) shall bear interest in accordance with Section 2.06, (ii) shall be denominated and repayable in Dollars, (iii) shall be disbursed on any Borrowing Date, (iv) disbursed on any Borrowing Date shall not exceed
on such Borrowing Date for all Lenders the Dollar Equivalent of the maximum available amount for such Borrowing Date as set forth in Section 2.02, (v) disbursed on any Borrowing Date shall not exceed for any Lender the Dollar Equivalent of
the Commitment of such Lender on such Borrowing Date, (vi) disbursed on any Borrowing Date shall not exceed the Dollar Availability on any such Borrowing Date and (vii) shall not in the aggregate exceed the Dollar Maximum Amount.
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(b) Loans disbursed to indirectly fund installments and delivery payments to the Yard in
respect of (x) Vessel 1 together with 50% of the Loans disbursed to fund payments of the Hermes Premium hereunder shall be herein referred to as “
Tranche A Loans
” and (y) Vessel 2 together with 50% of the Loans disbursed
to fund payments of the Hermes Premium hereunder shall be herein referred to as “
Tranche B Loans
”.
2.02
Amount and Timing of Each Borrowing; Currency of Disbursements
. (a) The Loans will be available on one or more dates (including each Initial Borrowing Date, each a “
Borrowing Date
”):
(i) to indirectly fund installments and delivery payments to the Yard under the Construction Contracts for the New Vessels
on or after the dates such payments are due and owing;
provided
that on any Borrowing Date, the Loans shall be available to the Borrower to indirectly fund installments and delivery payments to the Yard in respect of a New Vessel if and only
if ECF Loans under the Export Credit Facility for such New Vessel have been, or contemporaneously with the making of such Loans are, made available to the applicable ECF Borrower on or prior to such Borrowing Date to fund such installments and
delivery payments (as the case may be), and
(ii) to fund payments of the applicable Hermes Premium on and
after the dates on which such Hermes Premium is due and owing (including to reimburse the Parent or the Borrower for amounts it paid out of cash on hand) (it being understood and agreed that the Lenders shall be authorized to disburse directly to
Hermes the proceeds of Loans in an amount equal to the Hermes Premium that is then due and owing, without any action on the part of the Borrower (including, without limitation, without delivery by the Borrower of a Notice of Borrowing to the
Facility Agent in respect thereof), so long as the Facility Agent provides the Borrower with notice thereof).
(b) Loans made
on each Borrowing Date shall be disbursed by the Facility Agent to the Borrower and/or its designee(s), as set forth in Section 2.04, in Dollars and, subject to the Dollar Availability on such Borrowing Date, shall be in an amount equal to the
Dollar Equivalent of the amount of the Total Allocable Commitment utilized to make such Loans on such Borrowing Date pursuant to this Section 2.02,
provided
that in the event that the Borrower has not (i) notified the Facility Agent
in the Notice of Borrowing that it has entered into Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes or to the Yard on such Borrowing Date and (ii) provided reasonably sufficient evidence to the
Facility Agent of such Earmarked Foreign Exchange Arrangements in the Notice of Borrowing, the Facility Agent on such Borrowing Date shall convert the Dollar amount of the Loans to be made by each Lender into Euro at the Spot Rate applicable for
such Borrowing Date (it being understood that the same Spot Rate shall be used for such conversion as is used to calculate the Dollar Equivalent referred to in this Section 2.02(b)), and shall inform each Lender thereof, and such Euro amount
shall thereafter be disbursed to the Borrower and/or its designee(s) as set forth in Section 2.04 (it being understood that each Lender shall remit its Loans to the Facility Agent in Dollars on such Borrowing Date).
(c) No Borrowing Date may occur (x) in the case of Tranche A Loans, after December 23, 2013 and (y) in the case of Tranche
B Loans, after December 8, 2014.
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2.03
Notice of Borrowing
. Subject to the second parenthetical in
Section 2.02(a)(ii), whenever the Borrower desires to make a Borrowing hereunder, it shall give the Facility Agent at its Notice Office at least three Business Days’ prior written notice of each Loan to be made hereunder,
provided
that any such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (Frankfurt time) (unless such 11:00 A.M. deadline is waived by the Facility Agent in the case of the first Initial Borrowing Date). Each
such written notice (each a “
Notice of Borrowing
”), except as otherwise expressly provided in Section 2.08, shall be irrevocable and shall be given by the Borrower substantially in the form of Exhibit A, appropriately completed
to specify (i) the portion of the Total Commitment to be utilized on such Borrowing Date, (ii) whether the Loans to be made on such Borrowing Date shall consist of Tranche A Loans or Tranche B Loans, (iii) if the Borrower and/or the
Parent and/or an ECF Borrower has entered into Earmarked Foreign Exchange Arrangements with respect to the installment payments due and owing under the relevant Construction Contract to be funded by the Loans to be incurred on such Borrowing Date,
the Dollar Equivalent of the portion of the Total Commitment to be borrowed on such Borrowing Date and evidence of such Earmarked Foreign Exchange Arrangements, (iv) the date of such Borrowing (which shall be a Business Day), (v) the
initial Interest Period to be applicable thereto (vi) to which account(s) the proceeds of such Loans are to be deposited (it being understood that pursuant to Section 2.04 the Borrower may designate one or more accounts of the Yard, Hermes
and/or the provider of the foreign exchange arrangements referenced in the definition of Dollar Equivalent), (vii) that all representations and warranties made by each Credit Party, in or pursuant to the Credit Documents are true and correct in
all material respects (unless stated to relate to a specific earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and no Event of Default is or will be continuing
after giving effect to such Borrowing and (viii) the Dollar Availability on such Borrowing Date together with calculations evidencing the determination of such Dollar Availability (in form and substance reasonably satisfactory to the Facility
Agent). The Facility Agent shall promptly give each Lender which is required to make Loans, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence
to be specified in the Notice of Borrowing.
2.04
Disbursement of Funds
. No later than 12:00 Noon (Frankfurt time) on
the date specified in each Notice of Borrowing, each Lender will make available its
pro
rata
portion of each Borrowing requested in the Notice of Borrowing to be made on such date. All such amounts shall be made available in the
currency required by Section 2.02(b) in immediately available funds at the Payment Office of the Facility Agent, and the Facility Agent will make available to (I) in the case of Loans disbursed in Dollars, the Borrower (and/or its
designee(s), to the extent possible and to the extent such designee is a provider of Earmarked Foreign Exchange Arrangements referenced in the definition of Dollar Equivalent) and (II) in the case of Loans disbursed in Euro, designee(s) of the
Borrower (to the extent any such designee is the Yard or, in the case of the Hermes Premium, Hermes), in each case prior to 3:00 P.M. (Frankfurt Time) on such day, to the extent of funds actually received by the Facility Agent prior to
12:00 Noon (Frankfurt Time) on such day in each case at the Payment Office in the account(s) specified in the applicable Notice of Borrowing, the aggregate of the amounts so made available by the Lenders. Unless the Facility Agent shall have
been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Facility Agent such Lender’s portion of any Borrowing to be made on such date, the Facility Agent may assume that
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such Lender has made such amount available to the Facility Agent on such date of Borrowing and the Facility Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available to the Facility Agent by such Lender, the Facility Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Facility Agent’s demand therefor, the Facility Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Facility Agent. The Facility Agent
shall also be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Facility Agent to the
Borrower until the date such corresponding amount is recovered by the Facility Agent, at a rate per annum equal to (i) if recovered from such Lender, at the overnight Eurodollar Rate and (ii) if recovered from the Borrower, the rate of
interest applicable to the respective Borrowing, as determined pursuant to Section 2.06. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.
2.05
Pro Rata
Borrowings
. All Borrowings of Loans under this Agreement shall be incurred from the Lenders
pro
rata
on the basis of their Commitments. It is understood that no Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder. The obligations of the Lenders under this
Agreement are several and not joint and no Lender shall be responsible for the failure of any other Lender to satisfy its obligations hereunder.
2.06
Interest
. (a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Loan from the date the proceeds thereof are made available to the Borrower until the
maturity (whether by acceleration or otherwise) of such Loan at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin plus the Eurodollar Rate for such Interest Period plus any
Mandatory Costs.
(b) If the Borrower fails to pay any amount payable by it under a Credit Document on its due date,
interest shall accrue on the overdue amount (in the case of overdue interest to the extent permitted by law) from the due date up to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (c) below,
2%
plus
the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Facility Agent (acting
reasonably). Any interest accruing under this Section 2.06(b) shall be immediately payable by the Borrower on demand by the Facility Agent.
(c) If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and
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(ii) the rate of interest applying to the overdue amount during that first
Interest Period shall be 2%
plus
the rate which would have applied if the overdue amount had not become due.
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain immediately due and payable.
(d) Accrued and unpaid interest
shall be payable in respect of each Loan, (i) on the last day of each Interest Period applicable thereto and every three months in the case of Interest Periods in excess of three months, (ii) on any repayment or prepayment date (on the
amount repaid or prepaid), (iii) at maturity (whether by acceleration or otherwise) and (iv) after such maturity, on demand.
(e) Upon each Interest Determination Date, the Facility Agent shall determine the Eurodollar Rate for each Interest Period applicable to the Loans to be made pursuant to the applicable Borrowing and shall
promptly notify the Borrower and the respective Lenders thereof. Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.
2.07
Interest Periods
. At the time the Borrower gives any Notice of Borrowing in respect of the making of Loans by the Lenders (in
the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of an Interest Period applicable to such Loans (in the case of any subsequent Interest Period), it shall have the right to elect, by
giving the Facility Agent notice thereof, the interest period (each an “
Interest Period
”) applicable to such Loans, which Interest Period shall, at the option of the Borrower, be a three or six month period;
provided
that:
(a) all Loans comprising a Borrowing shall at all times have the same Interest Period;
(b) the initial Interest Period for any Loan shall commence on the date of Borrowing of such Loan and each Interest Period
occurring thereafter in respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires;
(c) if any Interest Period relating to a Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
(d) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the first succeeding Business Day;
provided
,
however
, that if any Interest Period for a Loan would otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
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(e) no Interest Period longer than three months may be selected at any time
when an Event of Default (or, if the Facility Agent or the Required Lenders have determined that such an election at such time would be disadvantageous to the Lenders, a Default) has occurred and is continuing;
(f) no Interest Period in respect of any Borrowing of any Loans shall be selected which extends beyond the Tranche A Loan
Maturity Date (in the case of Tranche A Loans) or the Tranche B Loan Maturity Date (in the case of Tranche B Loans); and
(g) at no time shall there be more than ten Borrowings of Loans subject to different Interest Periods.
If upon the expiration of any Interest Period applicable to a Borrowing, the Borrower has failed to elect a new Interest Period to be applicable to such Loans as provided above, the Borrower shall be
deemed to have elected a three month Interest Period to be applicable to such Loans effective as of the expiration date of such current Interest Period.
2.08
Increased Costs, Illegality, Market Disruption, etc.
(a) In the event that any Lender shall have reasonably determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) at any time, that such Lender shall incur increased costs
(including, without limitation, pursuant to Basel II to the extent Basel II is applicable), Mandatory Costs (as set forth on Schedule 1.01(c)) or reductions in the amounts received or receivable hereunder with respect to any Loan because of, without
duplication, any change since the Effective Date in any applicable law or governmental rule, governmental regulation, governmental order, governmental guideline or governmental request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or governmental rule, governmental regulation, governmental order, governmental guideline or governmental request, such as, for example, but not limited to:
(A) a change in the basis of taxation of payment to any Lender of the principal of or interest on such Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net
profits of such Lender, or any franchise tax based on net income or net profits, of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which such Lender’s principal office or applicable lending office
is located or any subdivision thereof or therein), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements; or
(ii) at any time, that the making or continuance of any Loan has been made unlawful by any law or governmental rule,
governmental regulation or governmental order;
then
, and in any such event, such Lender shall promptly give notice (by telephone
confirmed in writing) to the Borrower and to the Facility Agent of such determination (which notice the Facility Agent shall promptly transmit to each of the Lenders). Thereafter (x) in the case of
-36-
clause (i) above, the Borrower agrees (to the extent applicable), to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased costs or reductions to such Lender or such other corporation and (y) in the case of clause (ii) above, the Borrower shall take one of the actions specified in Section 2.08(b) as
promptly as possible and, in any event, within the time period required by law. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such Lender’s determination of compensation owing under this Section 2.08(a) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional
amounts will be payable pursuant to this Section 2.08(a), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for the calculation of such additional amounts;
provided
that,
subject to the provisions of Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
(b) At any time that any Loan is affected by the circumstances described in Section 2.08(a)(i) or (ii), the Borrower may (and in the case of a Loan affected by the circumstances described in
Section 2.08(a)(ii) shall) either (x) if the affected Loan is then being made initially, cancel the respective Borrowing by giving the Facility Agent notice in writing on the same date or the next Business Day that the Borrower was
notified by the affected Lender or the Facility Agent pursuant to Section 2.08(a)(i) or (ii) or (y) if the affected Loan is then outstanding, upon at least three Business Days’ written notice to the Facility Agent, in the case of
any Loan, repay all outstanding Borrowings (within the time period required by the applicable law or governmental rule, governmental regulation or governmental order) which include such affected Loans in full in accordance with the applicable
requirements of Section 4.02;
provided
that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.08(b).
(c) If any Lender determines that after the Effective Date (i) the introduction of or effectiveness of or any change in any
applicable law or governmental rule, governmental regulation, governmental order, governmental guideline, governmental directive or governmental request (whether or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central bank or comparable agency will have the effect of increasing the amount of capital required or expected to be maintained by such Lender, or any corporation controlling
such Lender, based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, (ii) compliance with any law or regulation or any request from or requirement of any central bank or other fiscal, monetary or other
authority made after the Effective Date (including any which relates to capital adequacy or liquidity controls or which affects the manner in which a Lender allocates capital resources to obligations under this Agreement, any Interest Rate
Protection Agreement and/or any Other Hedging Agreement) or (iii) to the extent that such change is not discretionary and is pursuant to law, a governmental mandate or request, or a central bank or other fiscal or monetary authority mandate or
request, any change in the risk weight allocated by such Lender to the Borrower after the Effective Date, then the Borrower agrees (to the extent applicable) to pay to such Lender, upon its written demand therefor, such additional amounts as shall
be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation
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as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are
reasonable,
provided
that such Lender’s determination of compensation owing under this Section 2.08(c) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that
any additional amounts will be payable pursuant to this Section 2.08(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts;
provided
that, subject to the provisions of Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
(d) If a Market Disruption Event occurs in relation to any Lender’s share of a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period
shall be the percentage rate per annum which is the sum of:
(i) the Applicable Margin;
(ii) the rate determined by such Lender and notified to the Facility Agent by 5:00 P.M. (Frankfurt time) on the Interest
Determination Date for such Interest Period to be that which expresses as a percentage rate per annum the cost to each such Lender of funding its participation in that Loan for a period equivalent to such Interest Period from whatever source it may
reasonably select;
provided
that the rate provided by a Lender pursuant to this clause (ii) shall not be disclosed to any other Lender and shall be held as confidential by the Facility Agent and the Borrower; and
(iii) the Mandatory Costs, if any, applicable to such Lender of funding its participation in that Loan.
(e) If a Market Disruption Event occurs and the Facility Agent or the Borrower so require, the Facility 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. Any alternative basis agreed pursuant to the immediately preceding sentence shall, with the prior
consent of all the Lenders and the Borrower, be binding on all parties. If no agreement is reached pursuant to this clause (e), the rate provided for in clause (d) above shall apply for the entire applicable Interest Period.
(f) If any Reference Bank ceases to be a Lender under this Agreement, (x) it shall cease to be a Reference Bank and (y) the
Facility Agent shall, with the approval (which shall not be unreasonably withheld) of the Borrower, nominate as soon as reasonably practicable another Lender to be a Reference Bank in place of such Reference Bank.
2.09
Indemnification; Breakage Costs
. The Borrower agrees to indemnify each Lender, within two Business Days of demand (in writing
which request shall set forth in reasonable detail the basis for requesting and the calculation of such amount and which in the absence of manifest error shall be conclusive evidence as to the amount due), for all losses, expenses and liabilities
(including, without limitation, any such loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Loans but excluding any loss of anticipated profits) which such
Lender may sustain in
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respect of Loans made to the Borrower: (i) if for any reason (other than a default by such Lender or the Facility Agent) a Borrowing of Loans does not occur on a date specified therefor in a
Notice of Borrowing (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 2.08(a)); (ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 2.08(a),
Section 4.01 or Section 4.02 or as a result of an acceleration of the Loans pursuant to Section 11) of any of its Loans, or assignment and/or transfer of its Loans pursuant to Section 2.11, occurs on a date which is not the last
day of an Interest Period with respect thereto; or (iii) if any prepayment of any of its Loans is not made on any date specified in a notice of prepayment given by the Borrower.
2.10
Change of Lending Office; Limitation on Additional Amounts
. (a) Each Lender agrees that on the occurrence of any event
giving rise to the operation of Section 2.08(a), Section 2.08(b), or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable good faith efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event or otherwise take steps to mitigate the effect of such event,
provided
that such designation shall be made and/or such steps shall be taken at the
Borrower’s cost and on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage in excess of
de
minimus
amounts, with the object of avoiding the consequence of the event giving rise
to the operation of such Section. Nothing in this Section 2.10 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender provided in Section 2.08 and Section 4.04.
(b) Notwithstanding anything to the contrary contained in Sections 2.08, 2.09 or 4.04 of this Agreement, unless a Lender gives notice to
the Borrower that it is obligated to pay an amount under any such Section within 180 days of the later of (x) the date the Lender incurs the respective increased costs, Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital or (y) the date such Lender has knowledge of its incurrence of the respective increased costs, Taxes, loss, expense or liability, reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be indemnified for such amount by the Borrower pursuant to said Section 2.08, 2.09, or 4.04, as the case may be, to the extent the costs, Taxes, loss, expense or liability, reduction in
amounts received or receivable or reduction in return on capital are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to the Borrower that it is obligated to pay the respective amounts pursuant to
said Section 2.08, 2.09 or 4.04, as the case may be. This Section 2.10(b) shall have no applicability to any Section of this Agreement other than said Sections 2.08, 2.09 and 4.04.
2.11
Replacement of Lenders
. (x) If any Lender becomes a Defaulting Lender or otherwise defaults in its obligations to make
Loans, (y) upon the occurrence of any event giving rise to the operation of Section 2.08(a) or Section 4.04 with respect to any Lender which results in such Lender charging to the Borrower material increased costs in excess of the
average costs being charged by the other Lenders, or (z) as provided in Section 14.11(b) in the case of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders, the Borrower shall (for its own cost) have the right, if no Default or Event of Default will exist immediately after giving effect to the respective replacement, to replace such Lender (the
“
Replaced Lender
”) with one or more other Eligible Transferee or Eligible Transferees, none of
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whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “
Replacement Lender
”) reasonably acceptable to the Facility Agent (it being
understood that all then-existing Lenders are reasonably acceptable);
provided
that:
(a) at the time of
any replacement pursuant to this Section 2.11, the Replacement Lender shall enter into one or more Transfer Certificates pursuant to Section 13.01(a) (and with all fees payable pursuant to said Section 13.02 to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the
sum (without duplication) of (x) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender, and (y) an amount equal to all accrued, but unpaid, Commitment Commission owing to the
Replaced Lender pursuant to Section 3.01;
(b) all obligations of the Borrower due and owing to the
Replaced Lender at such time (other than those specifically described in clause (a) above) in respect of which the assignment purchase price has been, or is concurrently being, paid shall be paid in full to such Replaced Lender concurrently
with such replacement; and
(c) if the Borrower elects to replace any Lender pursuant to clause (x),
(y) or (z) of this Section 2.11, the Borrower shall also replace each other Lender that qualifies for replacement under such clause (x), (y) or (z).
Upon the execution of the respective Transfer Certificate and the payment of amounts referred to in clauses (a) and (b) above, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05), which shall survive as to such Replaced
Lender.
2.12
Disruption to Payment Systems, Etc.
If either the Facility Agent determines (in its discretion) that a
Disruption Event has occurred or the Facility Agent is notified by the Parent or the Borrower that a Disruption Event has occurred:
(i) the Facility Agent may, and shall if requested to do so by the Borrower or the Parent, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or
administration of this Agreement as the Facility Agent may deem necessary in the circumstances;
(ii) the
Facility Agent shall not be obliged to consult with the Borrower or the Parent in relation to any changes mentioned in clause (i) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;
(iii) the Facility Agent may consult with the other Agents, the Joint
Lead Arrangers and the Lenders in relation to any changes mentioned in clause (i) above but shall not be obliged to do so if, in its opinion, it is not practicable or necessary to do so in the circumstances;
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(iv) any such changes agreed upon by the Facility Agent and the Borrower or
the Parent pursuant to clause (i) above shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the parties to this Agreement as an amendment to (or, as the case may be, waiver of) the terms of the
Credit Documents, notwithstanding the provisions of Section 14.11, until such time as the Facility Agent is satisfied that the Disruption Event has ceased to apply;
(v) the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for
negligence or any other category of liability whatsoever but not including any claim based on the gross negligence, fraud or willful misconduct of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or
in connection with this Section 2.12; and
(vi) the Facility Agent shall notify the other Agents, the
Joint Lead Arrangers and the Lenders of all changes agreed pursuant to clause (iv) above as soon as practicable.
SECTION
3.
Commitment Commission; Fees; Reductions of Commitment
.
3.01
Commitment Commission
. (a) The Borrower
agrees to pay the Facility Agent for distribution to each Non-Defaulting Lender a commitment commission (the “
Commitment Commission
”) for the period from the Effective Date to and including the Commitment Termination Date (or such
earlier date as the Total Commitment shall have been terminated) computed at a rate for each day equal to 0.375 multiplied by the Applicable Margin multiplied by the Commitment for such day of such Non-Defaulting Lender divided by 360. Accrued
Commitment Commission shall be due and payable quarterly in arrears on each Payment Date and on the Borrowing Date corresponding to the second Delivery Date to occur (or such earlier date upon which the Total Commitment is terminated).
(b) The Borrower shall pay to each Agent, for such Agent’s own account or for the account of the Lenders, such other fees as have
been agreed to in writing by the Borrower and such Agent.
3.02
Voluntary Reduction or Termination of Commitments
. Upon
at least three Business Days’ prior notice to the Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, at any time or from time to time, without
premium or penalty, to reduce or terminate the Total Commitment, in whole or in part, in integral multiples of €5,000,000 in the case of partial reductions thereto,
provided
that (x) any partial reduction to the Total Commitment
pursuant to this Section 3.02 shall only be effective if there is an equal reduction of the “Total Commitment” under and as defined in the Other Term Loan Facility and (y) each such reduction shall apply proportionately to
permanently reduce the Commitment of each Lender.
3.03
Mandatory Reduction of Commitments
. (a) In addition to any
other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment (and the Commitment of each Lender) shall terminate in its entirety on the Commitment Termination Date.
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(b) In addition to any other mandatory commitment reductions pursuant to this
Section 3.03 or any other Section of this Agreement, the Total Commitment (and the Commitments of each Lender) shall be reduced:
(i) (immediately after the relevant Loans are made) on each Borrowing Date by the amount of Total Commitment utilized to make the Loans made on such Borrowing Date; and
(ii) on each borrowing date under the Other Term Loan Facility (immediately after the relevant loans are made on such
borrowing date under the Other Term Loan Facility) by the amount of Total Commitment utilized to make the loans under the Other Term Loan Facility on such borrowing date.
(c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment shall be terminated at the times required by
Section 4.02.
(d) Each reduction to the Total Commitment pursuant to this Section 3.03 and Section 4.02 shall
be applied proportionately to reduce the Commitment of each Lender.
(e) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment shall be reduced pursuant to Section 3.03 and 3.02 of the Other Term Loan Facility.
SECTION 4.
Prepayments; Repayments; Taxes
.
4.01
Voluntary Prepayments
. The Borrower shall have the right to prepay the Loans, without premium or penalty except as provided by law, in whole or in part at any time and from time to time on the
following terms and conditions:
(a) the Borrower shall give the Facility Agent prior to 12:00 Noon (Frankfurt
time) at its Notice Office at least 30 Business Days’ prior written notice of its intent to prepay such Loans, the amount of such prepayment and the specific Borrowing or Borrowings pursuant to which made, which notice the Facility Agent shall
promptly transmit to each of the Lenders;
(b) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 or such lesser amount of a Borrowing which is outstanding,
provided
that no partial prepayment of Loans made pursuant to any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than
$1,000,000;
(c) at the time of any prepayment of Loans pursuant to this Section 4.01 on any date other
than the last day of the Interest Period applicable thereto, the Borrower shall pay the amounts required pursuant to Section 2.09;
(d) in the event of certain refusals by a Lender as provided in Section 14.11(b) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Lenders, the Borrower
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may, upon five Business Days’ written notice to the Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), prepay all Loans,
together with accrued and unpaid interest, Commitment Commission, and other amounts owing to such Lender (or owing to such Lender with respect to each Loan which gave rise to the need to obtain such Lender’s individual consent) in accordance
with said Section 14.11(b) so long as (A) the Commitment of such Lender (if any) is terminated concurrently with such prepayment (at which time Schedule 1.01(a) shall be deemed modified to reflect the changed Commitments) and (B) the
consents required by Section 14.11(b) in connection with the prepayment pursuant to this clause (d) have been obtained; and
(e) each prepayment in respect of any Loans made pursuant to a Borrowing shall be applied (x) in inverse order of maturity and (y) except as expressly provided in the preceding clause (d),
pro
rata
among the Loans comprising such Borrowing,
provided
that in connection with any prepayment of Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Loan of a Defaulting Lender until all
other Loans of Non-Defaulting Lenders have been repaid in full.
4.02
Mandatory Repayments and Commitment Reductions
.
(a) In addition to any other mandatory repayments pursuant to this Section 4.02 or any other Section of this Agreement, the outstanding Loans shall be repaid (without further action of the Borrower being required) in 6 equal semi-annual
installments commencing on the first Business Day that is on or after the sixth month anniversary of (x) in the case of Tranche A Loans, the Borrowing Date in relation to the Vessel 1 Delivery Date and ending on the Tranche A Loan Maturity Date
and (y) in the case of Tranche B Loans, the Borrowing Date in relation to the Vessel 2 Delivery Date and ending on the Tranche B Loan Maturity Date (each such repayment, a “
Scheduled Repayment
”).
(b) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of
this Agreement, but without duplication, on (i) the Business Day following the date of a Collateral Disposition (other than a Collateral Disposition constituting an Event of Loss) and (ii) the earlier of (A) the date which is 150 days
following any Collateral Disposition constituting an Event of Loss involving the Collateral Vessel (or, in the case of an Event of Loss which is a constructive or compromised or arranged total loss of the Collateral Vessel, if earlier, 180 days
after the date of the event giving rise to such damage) and (B) the date of receipt by the Borrower, any of its Subsidiaries or the Facility Agent of the insurance proceeds relating to such Event of Loss, the Borrower shall repay the
outstanding Loans in full and the Total Allocable Commitment shall be automatically terminated and no further disbursements of Loans hereunder shall be permitted (without further action of the Borrower being required).
(c) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of
this Agreement, but without duplication, (x) if (i) the Vessel 1 Construction Contract is terminated prior to the Vessel 1 Delivery Date, (ii) Vessel 1 has not been delivered to Breakaway One by the Yard pursuant to the Vessel 1
Construction Contract by December 23, 2013 (iii) the Breakaway One Facility shall have been terminated or (iv) any of the events specified in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the
Vessel 1 Delivery Date, within five Business Days of
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the occurrence of such event the Borrower shall repay the outstanding Tranche A Loans in full and no further Loans shall be made in respect of installment and delivery payments in respect of
Vessel 1, and (y) if (i) the Vessel 2 Construction Contract is terminated prior to the Vessel 2 Delivery Date, (ii) Vessel 2 has not been delivered to Breakaway Two by the Yard pursuant to the Vessel 2 Construction Contract by
December 8, 2014 (iii) the Breakaway Two Facility shall have been be terminated or (iv) any of the events specified in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the Vessel 2 Delivery Date,
within five Business Days of the occurrence of such event the Borrower shall repay the outstanding Tranche B Loans in full and no further Loans shall be made in respect of installment and delivery payments in respect of Vessel 2. Notwithstanding
anything to the contrary in this Section 4.02(c), if the Borrower is not permitted to make such prepayment pursuant to the Senior Loan Agreements or the Jade Intercreditor Agreement, then the Borrower or the Parent shall post cash collateral or
other collateral reasonably acceptable to the Required Lenders in an amount equal to the then-outstanding Tranche A Loans or Tranche B Loans (as the case may be).
(d) With respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the specific Borrowing or Borrowings pursuant to which such Loans were made,
provided
that
(i) all Loans with Interest Periods ending on such date of required repayment shall be paid in full prior to the payment of any other Loans and (ii) each repayment of any Loans comprising a Borrowing shall be applied
pro
rata
among such Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Facility Agent shall, subject to the preceding provisions of this clause (d), make such designation in its sole reasonable discretion with
a view, but no obligation, to minimize breakage costs owing pursuant to Section 2.09.
(e) Notwithstanding anything to
the contrary contained elsewhere in this Agreement, (i) all outstanding Tranche A Loans shall be repaid in full on the Tranche A Loan Maturity Date and (ii) all outstanding Tranche B Loans shall be repaid in full on the Tranche B Loan
Maturity Date.
4.03
Method and Place of Payment
. Except as otherwise specifically provided herein, all payments under
this Agreement shall be made to the Facility Agent for the account of the Lender or Lenders entitled thereto not later than 10:00 A.M. (New York time) on the date when due and shall be made in Dollars in immediately available funds at the Payment
Office of the Facility Agent. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day (unless the next succeeding Business
Day shall fall in the next calendar month, in which case the due date thereof shall be the previous Business Day) and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.
4.04
Net Payments; Taxes
. (a) All payments made by any Credit Party hereunder will be made without setoff, counterclaim or
other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income, net profits or any franchise tax based on net income or net profits,
and any branch profits tax of a
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Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein or due to failure to provide documents under Section 4.04(b), all such taxes “
Excluded Taxes
”) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges to the extent imposed on taxes other than Excluded Taxes (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as
“
Taxes
” and “
Taxation
” shall be applied accordingly). The Borrower will furnish to the Facility Agent within 45 days after the date of payment of any Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender agrees (consistent with legal and regulatory restrictions and subject to overall policy considerations of
such Lender) to file any certificate or document or to furnish to the Borrower any information as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes;
provided
,
however
, that nothing in this Section 4.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations). The Borrower shall not be required to
indemnify any Lender for Taxes attributed to such Lender’s failure to provide the required documents under this Section 4.04(b).
(c) If the Borrower pays any additional amount under this Section 4.04 to a Lender and such Lender determines in its sole discretion exercised in good faith that it has actually received or realized
in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “
Tax Benefit
”), such Lender shall pay to the Borrower an
amount that such Lender shall, in its sole discretion exercised in good faith, determine is equal to the net benefit, after tax, which was obtained by such Lender in such year as a consequence of such Tax Benefit;
provided
,
however
,
that (i) any Lender may determine, in its sole discretion exercised in good faith consistent with the policies of such Lender, whether to seek a Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or
reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or defenses and (iii) nothing in this Section 4.04(c) shall require any
Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns).
4.05
Application of Proceeds
. (a) Subject to the provisions of the applicable Intercreditor Agreements (to the extent such Intercreditor Agreements are operative), all proceeds collected by the Collateral Agent upon any sale or other
disposition of such Collateral of each Credit Party, together with all other proceeds received by the Collateral Agent under and in accordance with this Agreement and the other Credit Documents (except to the extent released in accordance with the
applicable provisions of this Agreement or any other Credit Document), shall be applied by the Facility Agent to the payment of the Secured Obligations as follows:
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(i)
first
, to the payment of all amounts owing to the Collateral
Agent or any other Agent of the type described in clauses (iii) and (iv) of the definition of “Secured Obligations”;
(ii)
second
, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Credit Document Obligations shall be paid to the Lender
Creditors as provided in Section 4.05(d) hereof, with each Lender Creditor receiving an amount equal to such outstanding Credit Document Obligations or, if the proceeds are insufficient to pay in full all such Credit Document Obligations, its
Pro Rata Share of the amount remaining to be distributed,
provided
that to the extent such proceeds are (a) in respect of ECF Collateral related to Vessel 1, such proceeds will be applied first to the outstanding Credit Document
Obligations in respect of Tranche A Loans and second to the outstanding Credit Document Obligations in respect of Tranche B Loans, and (b) in respect of ECF Collateral related to Vessel 2, such proceeds will be applied first to the outstanding
Credit Document Obligations in respect of Tranche B Loans and second to the outstanding Credit Document Obligations in respect of Tranche A Loans;
(iii)
third
, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Other Obligations shall be paid to the Other
Creditors as provided in Section 4.05(d) hereof, with each Other Creditor receiving an amount equal to such outstanding Other Obligations or, if the proceeds are insufficient to pay in full all such Other Obligations, its Pro Rata Share of the
amount remaining to be distributed,
provided
that to the extent such monies are (a) in respect of ECF Collateral related to Vessel 1, such proceeds will be applied first to the outstanding Other Obligations in respect of Tranche A Loans
and second to the outstanding Other Obligations in respect of Tranche B Loans, and (b) in respect of ECF Collateral related to Vessel 2, such proceeds will be applied first to the outstanding Other Obligations in respect of Tranche B Loans and
second to the outstanding Other Obligations in respect of Tranche A Loans; and
(iv)
fourth
, to the
extent proceeds remain after the application pursuant to the preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement, the Credit Documents, the Interest Rate Protection Agreements and the Other Hedging
Agreements in accordance with their terms, to the relevant Credit Party or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, “
Pro Rata Share
” shall mean, when calculating a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s Credit Document Obligations or Other Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Credit
Document Obligations or Other Obligations, as the case may be.
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(c) If any payment to any Secured Creditor of its Pro Rata Share of any distribution would
result in overpayment to such Secured Creditor, such excess amount shall instead be distributed in respect of the unpaid Credit Document Obligations or Other Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor
whose Credit Document Obligations or Other Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Credit Document Obligations or
Other Obligations, as the case may be, of such Secured Creditor and the denominator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made (x) if to the Lender Creditors, to the Facility Agent under this
Agreement for the account of the Lender Creditors, and (y) if to the Other Creditors, to the trustee, paying agent or other similar representative (each, a “
Representative
”) for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For purposes of applying payments received in accordance with this
Section 4.05, the Collateral Agent shall be entitled to rely upon (i) the Facility Agent under this Agreement and (ii) the Representative for the Other Creditors or, in the absence of such a Representative, upon the Other Creditors
for a determination (which the Facility Agent, each Representative for any Other Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Credit Document Obligations and Other
Obligations owed to the Lender Creditors or the Other Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from an Other Creditor) to the contrary, the Collateral Agent, shall be entitled to assume that
no Interest Rate Protection Agreements or Other Hedging Agreements are in existence.
(f) It is understood and agreed that
each Credit Party shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral pledged by it under and pursuant to the Security Documents and the aggregate amount of the Secured
Obligations of such Credit Party.
SECTION 5.
Conditions Precedent to the Initial Borrowing Dates
. The obligation of
each Lender to make Loans on each Initial Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 5.02, 5.04, 5.05, 5.06, 5.07, 5.08, 5.10 and 5.12) waiver of the following
conditions:
5.01
Effective Date
. On or prior to the first Initial Borrowing Date, the Effective Date shall have
occurred.
5.02
Intercreditor Agreement
. (a) On or prior to the first Initial Borrowing Date, the Jade Intercreditor
Agreement shall have been executed by the parties thereto and shall be in full force and effect;
(b) On or prior to the
Tranche A Initial Borrowing Date, the Tranche A Intercreditor Agreement shall have been executed by the parties thereto and shall be in full force and effect; and
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(c) On or prior to the Tranche B Initial Borrowing Date, the Tranche B Intercreditor
Agreement shall have been executed by the parties thereto and shall be in full force and effect; and
5.03
Corporate
Documents; Proceedings; etc
. On the first Initial Borrowing Date, the Facility Agent shall have received a certificate, dated the Initial Borrowing Date, signed by the secretary or any assistant secretary of each Credit Party (or, to the extent
such Credit Party does not have a secretary or assistant secretary, the analogous Person within such Credit Party), and attested to by an authorized officer, member or general partner of such Credit Party, as the case may be, in substantially the
form of Exhibit D, with appropriate insertions, together with copies of the certificate of incorporation and by-laws (or equivalent organizational documents) of such Credit Party and the resolutions of such Credit Party referred to in such
certificate.
5.04
Know Your Customer
. On the first Initial Borrowing Date, the Facility Agent, the Hermes Agent and
the Lenders shall have been provided with all information requested in order to carry out and be reasonably satisfied with all necessary “know your customer” information required pursuant to the PATRIOT ACT and such other documentation and
evidence necessary in order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover in connection with each of the Facility
Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
5.05
Construction Contract
and Other Material Agreements
. On or prior to the first Initial Borrowing Date, the Facility Agent shall have received a true, correct and complete copy of each Construction Contract, which shall be in full force and effect, and all other
material contracts in connection with the construction, supervision and acquisition of each New Vessel that the Facility Agent may reasonably request and all such documents shall be reasonably satisfactory in form and substance to the Facility Agent
(it being understood that the executed copy of each Construction Contract delivered to the Joint Lead Arrangers prior to the Effective Date and attached as an exhibit to the Commitment Letter is satisfactory).
5.06
Assignment of Contracts
. (a) On the Tranche A Initial Borrowing Date, Breakaway One shall have duly authorized, executed
and delivered a valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway One Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment in
favor of the Collateral Agent of all of Breakaway One’s present and future interests in and benefits under (x) the Vessel 1 Construction Contract, (y) the Refund Guarantees in respect of Vessel 1 and (z) any and all Construction
Risk Insurances in respect of Vessel 1 (it being understood that the Parent and/or Breakaway One will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurances accept and endorse on such insurance policy a loss
payable clause substantially in the form set forth in Annex 1 to Part 3 of the Vessel 1 Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantees in respect of Vessel 1 and none of the
Construction Risk Insurances will have been issued on the Tranche A Initial Borrowing Date), which assignment shall be substantially in the form of Exhibit I-1 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and Breakaway One
and customary for transactions of this type (as
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modified, supplemented or amended from time to time, the “
Vessel 1 Assignment of Contracts
”), along with (to the extent incorporated into or required by such Exhibit or otherwise
agreed by Breakaway One and the Facility Agent) appropriate notices and consents relating thereto, including, without limitation, those acknowledgments, notices and consents listed on Schedule 5.06;
provided
that, if the Refund Guarantee
issued to Breakaway One on the Initial Borrowing Date (under and as defined in the Breakaway One Facility) shall have been issued by KfW IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and
delivered, valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway One Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment of Refund
Guarantee in the form of Exhibit O-1 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and customary for transactions of this type, along with appropriate notices and consents relating thereto (to the extent
incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent) (as modified, supplemented or amended from time to time, the “
Vessel 1 Assignment of KfW Refund Guarantees
”); and
(b) On the Tranche B Initial Borrowing Date, Breakaway Two shall have duly authorized, executed and delivered a valid and
effective second-priority (junior only to the Liens of the secured creditors under the Breakaway Two Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment in favor of the Collateral
Agent of all of Breakaway Two’s present and future interests in and benefits under (x) the Vessel 2 Construction Contract, (y) the Refund Guarantees in respect of Vessel 2 and (z) any and all Construction Risk Insurances in
respect of Vessel 2 (it being understood that the Parent and/or Breakaway Two will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurances accept and endorse on such insurance policy a loss payable clause
substantially in the form set forth in Annex 1 to Part 3 of the Vessel 2 Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantees in respect of Vessel 2 and none of the Construction Risk
Insurances will have been issued on the Tranche B Initial Borrowing Date), which assignment shall be substantially in the form of Exhibit I-2 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and Breakaway Two and customary for
transactions of this type (as modified, supplemented or amended from time to time, the “
Vessel 2 Assignment of Contracts
” and together with the “
Vessel 1 Assignment of Contracts
”, the “
Assignments of
Contracts
”), along with (to the extent incorporated into or required by such Exhibit or otherwise agreed by Breakaway Two and the Facility Agent) appropriate notices and consents relating thereto, including, without limitation, those
acknowledgments, notices and consents listed on Schedule 5.06;
provided
that, if the Refund Guarantee issued to Breakaway Two on the Initial Borrowing Date (under and as defined in the Breakaway Two Facility) shall have been issued by KfW
IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and delivered, valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway Two Facility and pari
passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment of Refund Guarantee in the form of Exhibit O-2 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and customary
for transactions of this type, along with appropriate notices and consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent) (as modified, supplemented
or amended from time to time, the “
Vessel 1 Assignment of KfW Refund Guarantees
” and together with the Vessel 1 Assignment of KfW Refund Guarantee, the “
Assignments of KfW Refund Guarantees
”).
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5.07
Collateral and Guaranty Requirements
. On or prior to the first Initial Borrowing
Date, the Collateral and Guaranty Requirements with respect to the Collateral Vessel shall have been satisfied or the Facility Agent shall have waived such requirements and/or conditioned such waiver on the satisfaction of such requirements within a
specified period of time.
5.08
Consents Under Existing Credit Facilities
. On or prior to the first Initial Borrowing
Date, the Facility Agent shall have received evidence that all conditions, waivers, consents, acknowledgments and amendments in relation to any existing credit facilities of the Parent and/or any of its Subsidiaries required in connection with or in
order to permit the transactions hereunder (including, without limitation, any prepayments required in connection therewith) shall have been obtained and/or satisfied.
5.09
Process Agent
. On or prior to the first Initial Borrowing Date, the Facility Agent shall have received satisfactory evidence from the Parent, the Borrower and any other applicable Credit Party
that they have each appointed an agent in London for the service of process or summons in relation to each of the Credit Documents.
5.10
Equity Payment
. (a) On the Tranche A Initial Borrowing Date, the Facility Agent shall have received evidence, in form and substance reasonably satisfactory to the Facility Agent, that
Breakaway One shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for Vessel 1 (other than from the proceeds of Loans, and loans under the ECF Facilities and the Other Term Loan Facility); and
(b) on the Tranche B Initial Borrowing Date, the Facility Agent shall have received evidence, in form and substance reasonably
satisfactory to the Facility Agent, that Breakaway Two shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for Vessel 2 (other than from the proceeds of Loans, and loans under the ECF Facilities and the Other
Term Loan Facility).
5.11
Financing Statements
. On each Initial Borrowing Date, the Collateral Agent, in consultation
with the applicable Credit Parties, shall have:
(a) prepared and filed proper financing statements (Form UCC-1
or the equivalent) fully prepared for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or give notice to third parties,
as the case may be, the security interests purported to be created by (i) the Vessel 1 Assignment of Contracts and the Vessel 1 Assignment of KfW Refund Guarantees (if any) with respect to the Tranche A Initial Borrowing Date or (ii) the
Vessel 2 Assignment of Contracts and the Vessel 2 Assignment of KfW Refund Guarantees (if any) with respect to the Tranche B Initial Borrowing Date; and
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(b) received certified copies of lien search results (Form UCC-11) listing
all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida, together with Form UCC-3 Termination Statements (or such other termination statements as shall be required by local
law) fully prepared for filing if required by applicable laws for any financing statement which covers the Collateral except to the extent evidencing Permitted Liens.
5.12
Opinions of Counsel
. The Facility Agent shall have received from:
(a) O’Melveny & Myers LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special New York counsel to the Parent and Borrower, an opinion addressed to the Facility
Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such
matters set forth on Schedule 5.12;
(b) Cains (or another counsel reasonably acceptable to the Joint Lead
Arrangers), special Isle of Man counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to
the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(c) Cox Hallett Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bermudian counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of
the Lenders and dated (i) the first Initial Borrowing Date or (ii) the second Initial Borrowing Date, as applicable, in each case in substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise
reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(d)
White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent (for itself
and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Lenders) dated (i) the first Initial Borrowing Date or (ii) the second Initial Borrowing Date, as applicable, in each case, in substantially the form
delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(e) White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special German
counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the
Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
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(f) Graham Thompson & Co. (or another counsel reasonably acceptable
to the Joint Lead Arrangers), special Bahamian counsel to the Credit Parties (or if the Collateral Vessel is not flagged in the Bahamas, counsel qualified in the jurisdiction of the flag of the Collateral Vessel and reasonably satisfactory to the
Facility Agent), an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably
satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12; and
(g)
Holland & Knight LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers) special Florida counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial
Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12.
5.13
Security Trust Deed
. On the first Initial Borrowing Date, the Security Trust Deed shall have been executed by the parties
thereto and shall be in full force and effect.
5.14
Litigation
. On each Initial Borrowing Date, there shall be no
actions, suits or proceedings (governmental or private) pending or, to the Parent or the Borrower’s knowledge, threatened (i) with respect to this Agreement, any other Credit Document, any Other Term Loan Credit Document or any Export
Credit Document, or (ii) which has had, or, if adversely determined, could reasonably be expected to have, a Material Adverse Effect.
SECTION 6.
Conditions Precedent to each Borrowing Date
. The obligation of each Lender to make Loans on each Borrowing Date is subject at the time of the making of such Loans to the satisfaction or
(other than in the case of Sections 6.01, 6.02, 6.03, 6.04, 6.06 and 6.07) waiver of the following conditions:
6.01
No
Default; Representations and Warranties
. At the time of each Borrowing and also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any
other Credit Document shall be true and correct in all material respects both before and after giving effect to such Borrowing with the same effect as though such representations and warranties had been made on the Borrowing Date in respect of such
Borrowing (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
6.02
Consents
. On or prior to each Borrowing Date, all necessary governmental (domestic and foreign) and material third party
approvals and/or consents in connection with each Construction Contract, the Refund Guarantees (to the extent issued on or prior to such Borrowing Date), each New Vessel, the Collateral Vessel and the other transactions contemplated hereby (except
to the extent specifically addressed in other sections of Section 5 or
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this Section 6) shall have been obtained and remain in effect. On each Borrowing Date, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon this Agreement, the Transaction or the other transactions contemplated by the Credit Documents.
6.03
Refund Guarantees
. (a) On (i) the Tranche A Initial Borrowing Date, the Refund Guarantee for the Pre-delivery
Installment in respect of Vessel 1 to be paid on the Initial Borrowing Date (under and as defined in the Breakaway One Facility) shall have been issued and assigned to the Collateral Agent pursuant to the Vessel 1 Assignment of Contracts (or, if
such Refund Guarantee is issued by KfW IPEX-Bank GmbH, the Vessel 1 Assignment of KfW Refund Guarantees) and (ii) on each other Tranche A Borrowing Date other than the Vessel 1 Delivery Date, any additional Refund Guarantees for Vessel 1 that
have been issued since the Tranche A Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a supplement to the relevant schedule to the Vessel 1 Assignment of Contracts (or, in the case of Refund Guarantees issued by
KfW IPEX-Bank GmbH, a supplement to the relevant schedule of the Vessel 1 Assignment of KfW Refund Guarantees) to the Collateral Agent with the updated information, in each case along with (to the extent incorporated in or required by the Vessel 1
Assignment of Contracts) an appropriate notice and consent relating thereto, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to
(x) the amount of the corresponding Pre-delivery Installment to be paid by Breakaway One to the Yard minus (y) the amount paid by the Yard to Breakaway One in respect of the corresponding Pre-delivery Installment under Article 8, Clause
2.8(i), (ii), (iii) or (iv) as the case may be, of the Vessel 1 Construction Contract pursuant to the terms of each Refund Guarantee, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect.
(b) On (i) the Tranche B Initial Borrowing Date, the Refund Guarantee for the Pre-delivery Installment in respect of
Vessel 2 to be paid on the Initial Borrowing Date (under and as defined in the Breakaway Two Facility) shall have been issued and assigned to the Collateral Agent pursuant to the Vessel 2 Assignment of Contracts (or, if such Refund Guarantee is
issued by KfW IPEX-Bank GmbH, the Vessel 2 Assignment of KfW Refund Guarantees) and (ii) on each other Tranche B Borrowing Date other than the Vessel 2 Delivery Date, any additional Refund Guarantees for Vessel 2 that have been issued since the
Tranche B Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a supplement to the relevant schedule to the Vessel 2 Assignment of Contracts (or, in the case of Refund Guarantees issued by KfW IPEX-Bank GmbH, a
supplement to the relevant schedule of the Vessel 2 Assignment of KfW Refund Guarantees) to the Collateral Agent with the updated information, in each case along with (to the extent incorporated in or required by the Vessel 2 Assignment of
Contracts) an appropriate notice and consent relating thereto, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to (x) the amount of
the corresponding Pre-delivery Installment to be paid by Breakaway Two to the Yard minus (y) the amount paid by the Yard to Breakaway Two in respect of the corresponding Pre-delivery Installment under Article 8, Clause 2.8(i), (ii),
(iii) or (iv) as the case may be, of the Vessel 2 Construction Contract pursuant to the terms of each Refund Guarantee, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect.
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6.04
ECF Payment
. On each Borrowing Date (other than on an Initial Borrowing Date) on
which the proceeds of Loans are being used to fund (or reimburse) a payment under a Construction Contract, the relevant ECF Borrower shall have paid (other than from proceeds of Loans or loans under the Other Term Loan Facility) [*] of the amount
due on such Borrowing Date under the Construction Contract, which payment may be made from proceeds of ECF Loans under the relevant ECF Facility.
6.05
Fees, Costs, etc
. On each Borrowing Date, the Borrower shall have paid to the Agents, the Joint Lead Arrangers and the Lenders all costs, fees, expenses (including, without limitation,
reasonable fees and expenses of White & Case LLP and local and maritime counsel and consultants) and other compensation contemplated hereby payable to the Agents, the Joint Lead Arrangers and the Lenders or payable in respect of the
transactions contemplated hereunder, to the extent then due;
provided
that any such costs, fees and expenses and other compensation shall have been invoiced to the Borrower at least three Business Days prior to such Borrowing Date.
6.06
Construction Contract
. On each Borrowing Date, the Borrower shall have certified that all conditions and
requirements under the relevant Construction Contract required to be satisfied on such Borrowing Date, including in connection with the respective payment installments to be made to the Yard on such Borrowing Date, shall have been satisfied
(including, but not limited to, the relevant ECF Borrower’s payment to the Yard of the portion of the payment installment on the relevant New Vessel that is not being financed with proceeds of the Loans), other than those that are not
materially adverse to the Lenders, it being understood that any litigation between the Yard and the Parent and/or Borrower shall be deemed to be materially adverse to the Lenders.
6.07
Hermes Cover
. On each Borrowing Date, (x) the Facility Agent shall have received evidence from the Hermes Agent that the
Hermes Cover is in full force and effect on terms acceptable to the Joint Lead Arrangers (it being understood that each Joint Lead Arranger shall have confirmed to the Hermes Agent that the terms of the Hermes Cover are acceptable), and all due and
owing Hermes Premium to be paid in connection therewith shall have been paid in full,
provided
it is understood and agreed that the Hermes Cover shall have been granted as soon as the Hermes Agent and/or KfW IPEX-Bank GmbH receives the
Declaration of Guarantee (
Gewährleistungs-Erklärung
) from Hermes and (y) all Loans and other financing to be made pursuant hereto shall be in material compliance with the Hermes Cover and all applicable requirements of law or
regulation.
6.08
Notice of Borrowing
. Prior to the making of each Loan, the Facility Agent shall have received the
Notice of Borrowing required by Section 2.03(a).
6.09
Solvency Certificate
. On each Borrowing Date, Parent shall
cause to be delivered to the Facility Agent a solvency certificate from a senior financial officer of Parent, in substantially the form of Exhibit J or otherwise reasonably acceptable to the Facility Agent, which shall be addressed to the Facility
Agent and each of the Lenders and dated such Borrowing Date, setting forth the conclusion that, after giving effect to the transactions hereunder (including the incurrence of all the financing contemplated with respect thereto and the purchase of
each New Vessel), the Parent and its Subsidiaries, taken as a whole, are not
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insolvent and will not be rendered insolvent by the Indebtedness incurred in connection therewith, and will not be left with unreasonably small capital with which to engage in their respective
businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
6.10
Litigation
. On
each Borrowing Date, other than as set forth on Schedule 6.10, there shall be no actions, suits or proceedings (governmental or private) pending or, to the Parent or the Borrower’s knowledge, threatened (i) with respect to this Agreement
or any other Credit Document or (ii) which have had, or, if adversely determined, could reasonably be expected to have, a Material Adverse Effect.
The acceptance of the proceeds of each Loan shall constitute a representation and warranty by the Borrower to the Facility Agent and each of the Lenders that all of the applicable conditions specified in
Section 5, this Section 6 and Section 7 applicable to such Loan have been satisfied as of that time.
SECTION
7.
Conditions Precedent to each Delivery Date
. The obligation of each Lender to make Loans on a Delivery Date is subject at the time of making such Loans to the satisfaction of the following conditions:
7.01
Delivery of Vessel
. On each Delivery Date, the relevant New Vessel shall have been delivered in accordance with the terms of
the relevant Construction Contract, other than those changes that would not be materially adverse to the interests of the Lenders.
7.02
Evidence of 90% Payment
. On the Delivery Date, the relevant ECF Borrower shall have provided funding for an amount in the aggregate equal to the sum of at least (x) 90% of the Initial
Construction Price for the relevant New Vessel out of which up to 80% of the Initial Construction Price may be funded by ECF Loans under the relevant ECF Facility, (y) [*] of the Permitted Change Orders, out of which up to [*] of such Permitted
Change Orders may be funded by ECF Loans under the relevant ECF Facility and (z) [*] of the difference between the Final Construction Price and the Adjusted Construction Price for the relevant New Vessel (in each case, other than from proceeds
of Loans or loans under the Other Term Loan Facility, but with respect to clauses (x) and (y) only, giving effect to proceeds from ECF Loans under the relevant ECF Facility) and the Facility Agent shall have received a certificate from an
officer of the relevant ECF Borrower to such effect.
7.03
Hermes Compliance; Compliance with Applicable Laws and
Regulations
. On the Delivery Date, all Loans and other financing to be made pursuant hereto shall be in material compliance with all applicable requirements of law or regulation and the Hermes Cover.
SECTION 8.
Representations and Warranties
. In order to induce the Lenders to enter into this Agreement and to make the Loans, the
Borrower or each Credit Party, as applicable, makes the following representations and warranties, in each case on a daily basis, all of which shall survive the execution and delivery of this Agreement and the making of the Loans:
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8.01
Entity Status
. The Parent and each of the other Credit Parties (i) is a
Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on
its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
8.02
Power and Authority
. Each of the Credit Parties has the power to enter into and perform this Agreement (as
applicable) and those of the other Credit Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorize the entry into and performance of this Agreement and such other Credit
Documents and such transactions. This Agreement constitutes legal, valid and binding obligations of the Parent and the Borrower enforceable in accordance with its terms and in entering into this Agreement and borrowing the Loans (in the case of the
Borrower), the Parent and the Borrower are each acting on their own account. Each other Credit Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Credit Party expressed to be a party thereto
enforceable in accordance with their respective terms
8.03
No Violation
. The entry into and performance of this
Agreement (as applicable), the other Credit Documents and the transactions contemplated hereby and thereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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the constitutional documents of any Credit Party; or
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(c)
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except as set forth on Schedule 8.03, any agreement or document to which any member of the NCLC Group is a party or which is binding upon such Credit Party or any of
its assets, nor result in the creation or imposition of any Lien on a Credit Party or its assets pursuant to the provisions of any such agreement or document (it being understood that the Export Credit Facilities and the Other Term Loan Facility
shall create senior and pari passu Liens, respectively, on certain Collateral).
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8.04
Governmental
Approvals
. Except for (x) the filing of those Security Documents which require registration in the Companies Registries in England and Wales, the Federal Republic of Germany, the Isle of Man Department of Economic Development, the Bahamas,
any state of the United States of America and/or with the Registrar of Companies in Bermuda, which filing must be completed within (i) 21 days of the execution and delivery of the relevant Security Document(s) in the case of England and Wales
and (ii) one month of the execution and delivery of the relevant Security Document(s) in the case of the Isle of Man, and (y) the registration of the Vessel Mortgage through the Bahamas Maritime Authority, all authorizations, approvals,
consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Credit
Documents and the transactions contemplated thereby have been obtained or effected and are in full force and effect except for matters in respect of (I) the Construction Risk Insurances and the Refund Guarantees (in each case to the extent that
such Collateral has not yet been delivered) and (II) Collateral to be delivered on the Delivery Date.
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8.05
Financial Statements; Financial Condition
. (a)(i) The audited consolidated
balance sheets of the Parent and its Subsidiaries as at December 31, 2007, December 31, 2008 and December 31, 2009 and the unaudited consolidated balance sheets of the Parent and its Subsidiaries as at June 30, 2010 and the
related consolidated statements of operations and of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the case of the annual financial statements, an unqualified report from
PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the
respective fiscal years or quarters, as the case may be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved
(except as approved by the aforementioned firm of accountants and disclosed therein).
(ii) The
pro
forma
consolidated balance sheet of the Parent and its Subsidiaries as of June 30, 2010 (after giving effect to the Transaction and the financing therefor), a copy of which has been furnished to the Lenders prior to the first Initial Borrowing Date,
presents a good faith estimate in all material respects of the
pro
forma
consolidated financial position of the Parent and its Subsidiaries as of such date.
(b) Since December 31, 2009, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
8.06
Litigation
. No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency
(including but not limited to investigative proceedings) are current or pending or, to the Parent or the Borrower’s knowledge, threatened, which might, if adversely determined, have a Material Adverse Effect.
8.07
True and Complete Disclosure
. Each Credit Party has fully disclosed in writing to the Facility Agent all facts relating to
such Credit Party which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.
8.08
Use of Proceeds
. (a) All proceeds of the Tranche A Loans may be used only to finance (i) up to 10% of the Initial
Construction Price of Vessel 1 and (ii) up to [*] of the Hermes Premium, and (b) all proceeds of the Tranche B Loans may be used to finance (i) up to 10% of the Initial Construction Price of Vessel 2 and (ii) up to [*] of the
related Hermes Premium.
8.09
Tax Returns and Payments
. The NCLC Group have complied with all taxation laws in all
jurisdictions in which it is subject to Taxation and has paid all material Taxes due and payable by it; no material claims are being asserted against it with respect to Taxes, which might, if such claims were successful, have a material adverse
effect on the ability of any Credit Party to perform its obligations under the Credit Documents or could otherwise be
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reasonably expected to have a Material Adverse Effect. As at the Effective Date all amounts payable by the Parent and the Borrower hereunder may be made free and clear of and without deduction
for or on account of any Taxation in the Parent and the Borrower’s jurisdiction.
8.10
No Material Misstatements
.
(a) All written information (other than the Projections, estimates and information of a general economic nature or general industry nature) (the “
Information
”) concerning the Parent and its Subsidiaries, and the transactions
contemplated hereby prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or any Agent in connection with the transactions contemplated hereby, when taken as a whole, was true and correct in all
material respects, as of the date such Information was furnished to the Lenders or any Agent and as of the Effective Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material
fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general economic nature prepared by or on behalf of the Parent, the Borrower or
any of their respective representatives and that have been made available to any Lenders or any Agent in connection with the transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by the Parent,
the Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from the Projections), as of the date such Projections and estimates were furnished to the Lenders and as of the Effective Date, and
(ii) as of the Effective Date, have not been modified in any material respect by the Parent or the Borrower.
8.11
The
Security Documents
. (a) None of the Collateral is subject to any Liens except Permitted Liens.
(b) After the
execution and registration thereof, the Vessel Mortgage will create, as security for the obligations purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on the Collateral Vessel in favor of the
Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on
the Collateral Vessel may be subject to the Permitted Liens related thereto, including the Permitted Liens held by the creditors under the Senior Loan Agreements) and subject to no other Liens (other than Permitted Liens related thereto, including
the Permitted Liens held pursuant to the Senior Loan Agreements).
(c) After the execution and delivery thereof and upon the
taking of the actions mentioned in the immediately succeeding sentence, each of the Security Documents will create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable fully perfected security
interest in and Lien on all right, title and interest of the Credit Parties party thereto in the Collateral described therein, subject only to Permitted Liens. Subject to Sections 5.07, 8.04 and this Section 8.11 and the definition of
“Collateral and Guaranty Requirements,” no filings or recordings are required in order to perfect the security interests created under any Security Document except for filings or recordings which shall have been made on or prior to the
execution of such Security Document.
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8.12
Capitalization
. All the Capital Stock, as set forth on Schedule 8.12, in the
Borrower and each other Credit Party (other than the Parent) is legally and beneficially owned directly or indirectly by the Parent and, except as permitted by Section 10.02, such structure shall remain so until the later of the Tranche A Loan
Maturity Date and the Tranche B Loan Maturity Date.
8.13
Subsidiaries
. On and as of the first Initial Borrowing Date,
other than in respect of Dormant Subsidiaries (i) the Parent has no Subsidiaries other than those Subsidiaries listed on Schedule 8.13 which Schedule identifies the correct legal name, direct owner, percentage ownership and jurisdiction of
organization of the Borrower and each such other Subsidiary on the date hereof, (ii) all outstanding shares of the Borrower and each other Subsidiary of the Parent have been duly and validly issued, are fully paid and non-assessable and have
been issued free of preemptive rights, and (iii) neither the Borrower nor any Subsidiary of the Parent has outstanding any securities convertible into or exchangeable for its Capital Stock or outstanding any right to subscribe for or to
purchase, or any options or warrants for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of or any calls, commitments or claims of any character relating to, its Capital Stock or any stock appreciation or
similar rights.
8.14
Compliance with Statutes, etc
. The Parent and each of its Subsidiaries is in compliance in all
material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, except
such noncompliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.15
Winding-up, etc
. None of the events contemplated in clauses (a), (b), (c) or (d) of Section 11.05 has occurred
with respect to any Credit Party.
8.16
No Default
. No event has occurred which constitutes a Default or Event of
Default under or in respect of any Credit Document to which any Credit Party is a party or by which the Parent or any of its Subsidiaries may be bound (including (inter alia) this Agreement) and no event has occurred which constitutes a default
under or in respect of any agreement or document to which any Credit Party is a party or by which any Credit Party may be bound, except to an extent as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
8.17
Pollution and Other Regulations
. Each of the Credit Parties:
(a) is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements
relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters),
including without limitation, laws, regulations, conventions and agreements relating to (i) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil,
hazard substances, petroleum and petroleum products and by-products (“
Materials of Environmental Concern
”) or (ii) Environmental Law;
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(b) has all permits, licenses, approvals, rulings, variances, exemptions, clearances,
consents or other authorizations required under applicable Environmental Law (“
Environmental Approvals
”) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably
anticipated to be conducted;
(c) has not received any notice, claim, action, cause of action, investigation or demand by any
other person, alleging potential liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages,
personal injuries, attorneys’ fees and expenses or fines or penalties, in each case arising out of, based on or resulting from (i) the presence or release or threat of release into the environment of any Materials of Environmental Concern
at any location, whether or not owned by such person or (ii) Environmental Claim,
which is, or are, in each case,
material; and
there are no circumstances that may prevent or interfere with such full compliance in the future.
There are no Environmental Claims pending or threatened against any of the Credit Parties which the Parent or the Borrower, in its
reasonable opinion, believes to be material.
There are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern, that the Parent or the Borrower reasonably believes could form the basis of any bona fide material
Environmental Claim against any of the Credit Parties.
8.18
Ownership of Assets
. Except as permitted by
Section 10.02, each member of the NCLC Group has good and marketable title to all its assets which is reflected in the audited accounts referred to in Section 8.05(a)
8.19
Concerning the Collateral Vessel
. (a) The name, registered owner, official number, and jurisdiction of registration and
flag of the Collateral Vessel is set forth on Schedule 8.19 (as updated from time to time by the Borrower pursuant to Section 9.13 with respect to flag jurisdiction, and otherwise (with respect to name, registered owner, official number and
jurisdiction of registration) upon advance notice and in a manner that does not interfere with the Lenders’ Liens on the Collateral,
provided
that the Borrower shall take all steps requested by the Collateral Agent to preserve and
protect the Liens created by the Security Documents on the Collateral Vessel) and (b) as of the first Initial Borrowing Date, the Collateral Vessel is and will be operated in material compliance with all applicable law, rules and regulations.
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8.20
Citizenship
. None of the Credit Parties has an establishment in the United
Kingdom within the meaning of the Overseas Companies Regulation 2009 or a place of business in the United States (in each case, except as already disclosed) or any other jurisdiction which requires any of the Security Documents to be filed or
registered in that jurisdiction to ensure the validity of the Security Documents to which it is a party unless (x) all such filings and registrations have been made or will be made as provided in Sections 5.07, 8.04 and 8.11 and the definition
of “Collateral and Guaranty Requirements” and (y) prompt notice of the establishment of such a place of business is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied. The Borrower and
each other Credit Party which owns or operates, or will own or operate, the Collateral Vessel at any time is, or will be, qualified to own and operate the Collateral Vessel under the laws of the Bahamas or such other jurisdiction in which the
Collateral Vessel is permitted, or will be permitted, to be flagged in accordance with the terms of Section 9.13.
8.21
Collateral Vessel Classification
. The Collateral Vessel is classified in the highest class available for vessels of its age and type with a classification society listed on Schedule 8.21 hereto or another internationally recognized
classification society reasonably acceptable to the Collateral Agent, free of any overdue conditions or recommendations.
8.22
No Immunity
. None of the Credit Parties nor any of their respective assets enjoys any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Credit
Documents or by any relevant or applicable law.
8.23
Fees, Governing Law and Enforcement
. No fees or taxes, including,
without limitation, stamp, transaction, registration or similar taxes, are required to be paid to ensure the legality, validity, or enforceability of this Agreement or any of the other Credit Documents other than recording taxes which have been, or
will be, paid as and to the extent due. Under the laws of the Bahamas or any other jurisdiction where the Collateral Vessel is flagged, the choice of the laws of England as set forth in the Credit Documents which are stated to be governed by the
laws of England is a valid choice of law, and the irrevocable submission by each Credit Party to jurisdiction and consent to service of process and, where necessary, appointment by such Credit Party of an agent for service of process, in each case
as set forth in such Credit Documents, is legal, valid, binding and effective.
8.24
Form of Documentation
. Each of the
Credit Documents is in proper legal form (under the laws of England, the Bahamas, the Isle of Man, Bermuda and each other jurisdiction where the Collateral Vessel is flagged or where the Credit Parties are domiciled) for the enforcement thereof
under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of each such Credit Document in England, the Bahamas, the Isle of Man and/or Bermuda it is not necessary that any Credit Document or any other document be
filed or recorded with any court or other authority in England, the Bahamas, the Isle of Man and/or Bermuda, except as have been made, or will be made, in accordance with Sections 5, 6, 7 and 8, as applicable.
8.25
Pari Passu or Priority Status
. The claims of the Agents and the Lenders against the Parent or the Borrower under this
Agreement will rank at least pari passu with the claims of all unsecured creditors of the Parent or the Borrower (other than claims of such creditors to the extent that they are statutorily preferred) and in priority to the claims of any creditor of
the Parent or the Borrower who is also a Credit Party.
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8.26
Solvency
. The Credit Parties, taken as a whole, are and shall remain, after the
advance to them of the Loans or any of such Loans, solvent in accordance with the laws of Bermuda, the United States, England, the Isle of Man and the Bahamas and in particular with the provisions of the Bankruptcy Code and the requirements thereof.
8.27
No Undisclosed Commissions
. There are and will be no commissions, rebates, premiums or other payments by or to or
on account of any Credit Party, their shareholders or directors in connection with the Transaction as a whole other than as disclosed to the Facility Agent or any other Agent in writing.
8.28
Completeness of Documentation
. The copies of each Management Agreement, Construction Contract, each Refund Guarantee and, to
the extent applicable, Supervision Agreement delivered to the Facility Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms
and no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable, unless replaced by a management agreement or management
agreements, refund guarantees or, to the extent applicable, a supervision agreement, as the case may be, reasonably satisfactory to the Facility Agent.
8.29
Money Laundering
. Any borrowing by the Borrower hereunder, and the performance of its obligations hereunder and under the other Security Documents, will be for its own account and will not, to
the best of its knowledge, involve any breach by it of any law or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive (2005/EC/60) of the European Parliament and of the Council of the European
Communities.
SECTION 9.
Affirmative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after
the first Initial Borrowing Date and until the Total Commitment has terminated and the Loans, together with interest, Commitment Commission and all other obligations incurred hereunder and thereunder, are paid in full (other than contingent
indemnification and expense reimbursement claims for which no claim has been made):
9.01
Information Covenants
. The
Parent will provide to the Facility Agent (or will procure the provision of):
(a)
Quarterly Financial Statements
.
Within 60 days after the close of the first three fiscal quarters in each fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such quarterly accounting period and the related consolidated
statements of operations and cash flows, in each case for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, and in each case, setting forth comparative
figures for the related periods in the prior fiscal year, all of which shall be certified by a financial officer of the Borrower, subject to normal year-end audit adjustments and the absence of footnotes;
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(b)
Annual Financial Statements
. Within 120 days after the close of each fiscal year
of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of operations and changes in shareholders’ equity and of cash flows for such fiscal year
setting forth comparative figures for the preceding fiscal year and audited by independent certified public accountants of recognized international standing, together with an opinion of such accounting firm (which opinion shall not be qualified as
to scope of audit or as to the status of the Parent as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Parent and its
Subsidiaries on a consolidated basis in accordance with GAAP;
(c)
Valuations
. After the first Initial Borrowing Date,
together with delivery of the financial statements described in Section 9.01(b) for each fiscal year, and at any other time within 15 days of a written request from the Facility Agent, appraisal reports of recent date (but in no event earlier
than 90 days before the delivery of such reports) from two Approved Appraisers or such other independent firm of shipbrokers or shipvaluers nominated by the Borrower and approved by the Facility Agent (acting on the instructions of the Required
Lenders) or failing such nomination and approval, appointed by the Facility Agent (acting on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Facility Agent, physical inspection and
on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the
Collateral Vessel), stating the then current fair market value of the Collateral Vessel. All such appraisals shall be conducted by, and made at the expense of, the Borrower (it being understood that the Facility Agent may and, at the request of the
Lenders, shall, upon prior written notice to the Borrower (which notice shall identify the names of the relevant appraisal firms), obtain such appraisals and that the cost of all such appraisals will be for the account of the Borrower);
provided
that, unless an Event of Default shall then be continuing, in no event shall the Borrower be required to pay for appraisal reports from two appraisers on more than one occasion in any fiscal year of the Borrower, with the cost of any
such reports in excess thereof to be paid by the Lenders on a
pro rata
basis;
(d)
Filings
. Promptly, copies of
all financial information, proxy materials and other information and reports, if any, which the Parent or any of its Subsidiaries shall file with the Securities and Exchange Commission (or any successor thereto);
(e)
Projections
. (i) As soon as practicable (and in any event within 120 days after the close of each fiscal year),
commencing with the fiscal year ending December 31, 2010, annual cash flow projections on a consolidated basis of the NCLC Group showing on a monthly basis advance ticket sales (for at least 12 months following the date of such statement) for
the NCLC Group;
(ii) As soon as practicable (and in any event not later than January 31 of each fiscal year):
|
|
(x)
|
a budget for the NCLC Group for such new fiscal year including a 12 month liquidity budget for such new fiscal year;
|
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|
|
(y)
|
updated financial projections of the NCLC Group for at least the next five years (including an income statement and quarterly break downs for the first of those five
years); and
|
|
|
(z)
|
an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings;
|
(f)
Officer’s Compliance Certificates
. As soon as practicable (and in any event within 60 days after the close of each of the
first three quarters of its fiscal year and within 120 days after the close of each fiscal year), a statement signed by one of the Parent’s financial officers substantially in the form of Exhibit L (commencing with the fourth quarter of the
fiscal year ending December 31, 2010) and such other information as the Facility Agent may reasonably request;
(g)
Litigation
. On a quarterly basis, details of any material litigation, arbitration or administrative proceedings affecting any Credit Party which are instituted and served, or, to the knowledge of the Parent or the Borrower, threatened (and
for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding $25,000,000 or the equivalent in another currency);
(h)
Notice of Event of Default
. Promptly upon (i) any Credit Party becoming aware thereof (and in any event within three Business Days), notification of the occurrence of any Event of Default
and (ii) the Facility Agent’s request from time to time, a certificate stating whether any Credit Party is aware of the occurrence of any Event of Default;
(i)
Status of Foreign Exchange Arrangements
. Promptly upon reasonable request from any Joint Lead Arranger through the Facility Agent, an update on the status of the Parent and the Borrower’s
foreign exchange arrangements with respect to the New Vessels, the Other Term Loan Facility, the Export Credit Facilities and this Agreement; and
(j)
Other Information
. Promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the NCLC Group as the Facility
Agent may reasonably request.
All accounts required under this Section 9.01 shall be prepared in accordance with GAAP
and shall fairly represent in all material respects the financial condition of the relevant company.
9.02
Books and
Records; Inspection
. The Parent will keep, and will cause each of its Subsidiaries to keep, proper books of record and account in all material respects, in which materially proper and correct entries shall be made of all financial transactions
and the assets, liabilities and business of the Parent and its Subsidiaries in accordance with GAAP. The Parent will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Facility Agent at the reasonable
request of any Joint Lead Arranger to visit and inspect, under guidance of officers of the Parent or such Subsidiary, any of the properties of the Parent or such Subsidiary, and to examine the books of account of the Parent or such Subsidiary and
discuss the affairs, finances and accounts of the Parent or such Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and
to such reasonable extent as the Facility Agent at the reasonable request of any such Joint Lead Arranger may reasonably request.
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9.03
Maintenance of Property; Insurance
. The Parent will (x) keep, and will
procure that each of its Subsidiaries keeps, all of its real property and assets properly maintained and in existence and will comprehensively insure, and will procure that each of its Subsidiaries comprehensively insures, for such amounts and of
such types as would be effected by prudent companies carrying on business similar to the Parent or its Subsidiaries (as the case may be) and (y) maintain (or cause the Borrower to maintain) insurance (including, without limitation, hull and
machinery, war risks, loss of hire (if applicable), protection and indemnity insurance as set forth on Schedule 9.03 (the “
Required Insurance
”) with respect to the Collateral Vessel at all times.
9.04
Corporate Franchises
. The Parent will, and will cause each of its Subsidiaries to, do all such things as are necessary to
maintain its corporate existence (except as permitted by Section 10.02) in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and
maintain all franchises and rights necessary for the conduct of its business, except, in the case of Subsidiaries that are not Credit Parties, to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.
9.05
Compliance with Statutes, etc
. The Parent will, and will cause each of its Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions (including all laws and regulations relating to money laundering) imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property, except such non-compliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.06
Hermes Cover
. (a) The terms and conditions of the Hermes Cover are incorporated herein and in so far as they impose terms, conditions and/or obligations on the Collateral Agent and/or the
Facility Agent and/or the Hermes Agent and/or the Lenders in relation to the Borrower or any other Credit Party then such terms, conditions and obligations are binding on the parties hereto and further in the event of any conflict between the terms
of the Hermes Cover and the terms hereof the terms of the Hermes Cover shall be paramount and prevail. For the avoidance of doubt, neither the Parent nor the Borrower has any interest or entitlement in the proceeds of the Hermes Cover. In
particular, but without limitation, the Borrower shall pay any difference between the amount of the Loans drawn to pay the Hermes Premium, and the Hermes Premium.
(b) The Borrower shall at all times promptly pay all due and owing Hermes Premium.
9.07
End of Fiscal Years
. The Parent and the Borrower will maintain their fiscal year ends as in effect on the Effective Date.
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9.08
Performance of Obligations
. The Parent will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each mortgage, indenture, security agreement and other debt instrument (including, without limitation, the Credit Documents) by which it is bound, except such non-performances as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.09
Payment of
Taxes
. The Parent will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, might become a Lien not otherwise permitted under Section 10.01,
provided
that neither the Parent nor any of its Subsidiaries shall be required to
pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with generally accepted accounting principles.
9.10
Further Assurances
. (a) The Borrower will, from time to time on being required to do so by the Facility Agent or the
Hermes Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form reasonably satisfactory to the Facility Agent or the Hermes Agent (as the case may be) as the Facility Agent or the Hermes
Agent may reasonably consider necessary for giving full effect to any of the Credit Documents or securing to the Agents and/or the Lenders or any of them the full benefit of the rights, powers and remedies conferred upon the Agents and/or the
Lenders or any of them in any such Credit Document.
(b) The Borrower hereby authorizes the Collateral Agent to file one or
more financing or continuation statements under the UCC (or any non-U.S. equivalent thereto), and amendments thereto, relative to all or any part of the Collateral without the signature of the Borrower, where permitted by law. The Collateral Agent
will promptly send the Borrower a copy of any financing or continuation statements which it may file without the signature of the Borrower and the filing or recordation information with respect thereto.
(c) If at any time an ECF Borrower shall enter into a Supervision Agreement pursuant to the relevant Construction Contract, such ECF
Borrower shall, substantially simultaneously therewith, duly authorize, execute and deliver a valid and effective second-priority (junior only to the Liens of the secured party under the relevant Export Credit Facility and pari passu only to the
Liens of the secured party under the Other Term Loan Facility) legal assignment in favor of the Collateral Agent of all of such ECF Borrower’s present and future interests in and benefits under such Supervision Agreement, which such assignment
shall be in form and substance reasonably acceptable to the Facility Agent and customary for this type of transaction.
9.11
Ownership of Subsidiaries
. Other than “director qualifying shares” and similar requirements, the Parent shall at all times directly or indirectly own 100% of the Capital Stock or other Equity Interests of the Borrower (except as
permitted by Section 10.02).
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9.12
Consents and Registrations
. The Parent and the Borrower shall obtain, and for so
long as such ECF Borrower is a Credit Party, the Parent shall procure that the ECF Borrowers obtain (and shall, at the request of the Facility Agent, promptly furnish certified copies to the Facility Agent of) all such authorizations, approvals,
consents, licenses and exemptions as may be required under any applicable law or regulation to enable it or any Credit Party to perform its obligations under, and ensure the validity or enforceability of, each of the Credit Documents are obtained
and promptly renewed from time to time and will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before an Initial Borrowing Date, the Borrower will procure the
filing or registration within applicable time limits of each applicable Security Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents.
9.13
Flag of Collateral Vessel
. (a) The Borrower shall cause the Collateral Vessel to be registered under the
laws and flag of the Bahamas or, provided that the requirements of a Flag Jurisdiction Transfer are satisfied, another Acceptable Flag Jurisdiction. Notwithstanding the foregoing, the relevant Credit Party may transfer the Collateral Vessel to an
Acceptable Flag Jurisdiction pursuant to the requirements set forth in the definition of “Flag Jurisdiction Transfer”.
(b) Except as permitted by Section 10.02, the Borrower will own the Collateral Vessel and will procure that the Collateral Vessel is traded within the NCLC Fleet from the first Initial Borrowing Date
until the later of the Tranche A Loan Maturity Date and the Tranche B Loan Maturity Date.
(c) The Borrower will at all times
engage the Manager (or a replacement manager reasonably acceptable to the Facility Agent) to provide the commercial and technical management and crewing of the Collateral Vessel.
9.14 “
Know Your Customer” and Other Similar Information
. The Parent will, and will cause the Credit Parties, to provide
(i) the “Know Your Customer” information required pursuant to the PATRIOT Act and applicable money laundering provisions and (ii) such other documentation and evidence necessary in order for the Lenders to carry out and be
reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or any Lender in connection with each of the
Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
SECTION 10.
Negative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the first Initial Borrowing Date and until all Commitments have terminated and the Loans, together with interest, Commitment Commission and all other
Credit Document Obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense reimbursement claims for which no claim has been made):
10.01
Liens
. The Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any Collateral, whether now owned or hereafter acquired, or sell any such Collateral subject to an understanding or agreement, contingent or otherwise, to repurchase such Collateral (including sales of accounts
receivable with recourse to the Parent or any of its Subsidiaries);
provided
that the provisions of this Section 10.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein
referred to as “
Permitted Liens
”):
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(i) inchoate Liens for taxes, assessments or governmental charges or levies
not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with generally accepted accounting
principles;
(ii) Liens imposed by law, which were incurred in the ordinary course of business and do not
secure Indebtedness for Borrowed Money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Collateral and do not materially impair the use thereof in the operation of the business of the Parent or such Subsidiary or (y) which are being contested in good faith by appropriate proceedings, which
proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Collateral subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule
10.01, without giving effect to any renewals or extensions of such Liens,
provided
that the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding on the Effective Date,
less any repayments of principal thereof;
(iv) Liens created pursuant to the Security Documents including,
without limitation, Liens created in relation to any Interest Rate Protection Agreement or Other Hedging Agreement;
(v) Liens arising out of judgments, awards, decrees or attachments with respect to which the Parent or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review,
provided
that the aggregate amount of all such judgments, awards, decrees or attachments shall not constitute an Event of Default under Section 11.09;
(vi) Liens in respect of seamen’s wages which are not past due and other maritime Liens arising in the ordinary
course of business up to an aggregate amount of $10,000,000;
(vii) Liens on the ECF Collateral securing the
obligations under the Export Credit Facilities and the Other Term Loan Facility and any interest rate protection agreement or other hedging agreement in connection therewith, provided that such Liens are subject to the provisions of the ECF
Intecreditor Agreements;
(viii) Liens on the Jade Collateral securing the obligations under the Senior Loan
Agreements and any interest rate protection agreement or other hedging agreement in connection therewith, provided that such Liens are subject to the provisions of the Jade Intercreditor Agreement; and
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(ix) Liens which rank after the Liens created by the Security Documents to
secure the performance of bids, tenders, bonds or contracts;
provided
that (a) such bids, tenders, bonds or contracts directly relate to the Collateral Vessel, are incurred in the ordinary course of business and do not relate to the
incurrence of Indebtedness for Borrowed Money, and (b) at any time outstanding, the aggregate amount of Liens under this clause (ix) shall not secure greater than $25,000,000 of obligations.
In connection with the granting of Liens described above in this Section 10.01 by the Parent or any of its Subsidiaries, the Facility Agent and the
Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien subordination agreements in favor of the holder or holders of such Liens, in
respect of the item or items of equipment or other assets subject to such Liens).
10.02
Consolidation, Merger,
Amalgamation, Sale of Assets, Acquisitions, etc
. (a) The Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger, amalgamation or consolidation, or
convey, sell, lease or otherwise dispose of all or substantially all of its property or assets, or make any Acquisitions, except that:
(i) any Subsidiary of the Parent (other than the Borrower) may merge, amalgamate or consolidate with and into, or be dissolved or liquidated into, the Parent or other Subsidiary of the Parent (other than
the Borrower), so long as (x) in the case of any such merger, amalgamation, consolidation, dissolution or liquidation involving the Parent, the Parent is the surviving or continuing entity of any such merger, amalgamation, consolidation,
dissolution or liquidation and (y) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(ii) the Parent and any Subsidiary of the Parent may make dispositions of assets so long as such disposition is permitted
pursuant to Section 10.02(b);
(iii) the Parent and any Subsidiary of the Parent (other than the Borrower)
may make Acquisitions;
provided
that (x) the Parent provides evidence reasonably satisfactory to the Required Lenders that the Parent will be in compliance with the financial undertakings contained in Sections 10.06 to 10.09 after giving
effect to such Acquisition on a pro forma basis and (y) no Default or Event of Default will exist after giving effect to such Acquisition; and
(iv) the Parent and any Subsidiary of the Parent (other than the Borrower) may establish new Subsidiaries.
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(b) The Parent will not, and will not permit any other company in the NCLC Group to, either
in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its assets except that the following disposals shall
not be taken into account:
(i) dispositions made in the ordinary course of trading of the disposing entity
(excluding a disposition of the Collateral Vessel or other Collateral) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for
value in the ordinary course of trading;
(ii) dispositions of cash raised or borrowed for the purposes for
which such cash was raised or borrowed;
(iii) dispositions of assets (other than the Collateral Vessel or
other Collateral) owned by any member of the NCLC Group in exchange for other assets comparable or superior as to type and value;
(iv) a vessel (other than the Collateral Vessel or other Collateral) or any other asset owned by any member of the NCLC Group (other than the Borrower) may be sold,
provided
such sale is on a
willing seller willing buyer basis at or about market rate and at arm’s length subject always to the provisions of any loan documentation for the financing of such vessel or other asset;
(v) the Credit Parties may sell, lease or otherwise dispose of the Collateral Vessel or sell 100% of the Capital Stock of
the Borrower,
provided
that such sale is made at fair market value, the Total Allocable Commitment is permanently reduced to $0, and the Loans are repaid in full; and
(vi) Permitted Chartering Arrangements.
10.03
Dividends
. The Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Parent may pay Dividends to another member of the NCLC Group;
provided
that the
Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International, Ltd., NCL America Holdings, LLC or Arrasas Limited shall be received
promptly by the Parent directly or indirectly by way of Dividend;
(ii) the Parent 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 NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable
as a result of any member of the NCLC 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 NCLC Group; and
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(iii) at any time following the listing of the ordinary Capital Stock of the
Parent on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on January 1, 2010 and ending on the
date prior to such Dividend for which financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the time of such Dividend and after giving effect thereto the ratio
of Total Net Funded Debt to Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided to the Facility Agent pursuant to Section 9.01 is less than 5.50:1.00.
10.04
Advances, Investments and Loans
. The Parent will not, and will not permit any other member of the NCLC Group to, purchase or
acquire any margin stock (or other Equity Interests) or any other asset, or make any capital contribution to or other investment in any other Person (each of the foregoing an “
Investment
” and, collectively,
“
Investments
”), in each case either in a single transaction or in a series of transactions (whether related or not), except that the following shall be permitted:
(i) Investments on arm’s length terms;
(ii) Investments for its use in its ordinary course of business;
(iii) Investments the cost of which is less than or equal to its fair market value at the date of acquisition; and
(iv) Investments permitted by Section 10.02.
10.05
Transactions with Affiliates
. (a) The Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of such Person (each of the foregoing, an “
Affiliate Transaction
”) involving aggregate consideration in excess of $10,000,000 unless
such Affiliate Transaction is on terms that are not materially less favorable to the Parent or any Subsidiary of the Parent than those that could have been obtained in a comparable transaction by such Person with an unrelated Person.
(b) The provisions of Section 10.05(a) shall not apply to the following:
(i) transactions between or among the Parent and/or any Subsidiary of the Parent (or an entity that becomes a Subsidiary
of the Parent as a result of such transaction) and any merger, consolidation or amalgamation of the Parent or any Subsidiary of the Parent and any direct parent of the Parent, any Subsidiary of the Parent or, in the case of a Subsidiary of the
Parent, the Parent;
provided
that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent or such Subsidiary of the Parent, as the case may be, and such
merger, consolidation or amalgamation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
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(ii) Dividends permitted by Section 10.03 and Investments permitted by
Section 10.04;
(iii) the payment of reasonable and customary fees and reimbursement of expenses paid to,
and indemnity provided on behalf of, officers, directors, employees or consultants of the Parent or any Subsidiary of the Parent, any direct or indirect parent of the Parent;
(iv) payments by the Parent or any Subsidiary of the Parent to a Permitted Holder made for any financial advisory,
financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the board of directors
of the Parent in good faith;
(v) any agreement to pay, and the payment of, monitoring, management,
transaction, advisory or similar fees (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of (i) 1% of Consolidated EBITDA of the Parent and (ii) $9,000,000 plus reasonable out of pocket costs
and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (A)(1) above originally), plus (B) 2.0% of the value of transactions
with respect to which an Affiliate provides any transaction, advisory or other services, plus (C) so long as no Event of Default has occurred and is continuing, in the event of an initial public offering, the present value of all future amounts
payable pursuant to any agreement referred to in clause (A)(1) above in connection with the termination of such agreement with a Permitted Holder;
provided
that if any such payment pursuant to clause (C) is not permitted to be paid as a
result of an Event of Default, such payment shall accrue and may be payable when no Event of Default is continuing to the extent that no further Event of Default would result therefrom;
(vi) transactions in which the Parent or any Subsidiary of the Parent, as the case may be, delivers to the Facility Agent
a letter from an independent financial advisor stating that such transaction is fair to the Parent or any Subsidiary of the Parent, as the case may be, from a financial point of view or meets the requirements of Section 10.05(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by
a majority of the board of directors of the Parent in good faith;
(viii) any agreement as in effect as of the
Effective Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the
Effective Date) or any transaction contemplated thereby as determined in good faith by the Parent;
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(ix) (A) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to the Parent
and its Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Parent, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or
(B) transactions with joint ventures or Subsidiaries of the Parent entered into in the ordinary course of business and consistent with past practice or industry norm;
(x) the issuance of Equity Interests (other than Disqualified Stock) of the Parent to any Person;
(xi) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Parent or any direct or indirect parent of the Issuer or of a Subsidiary of the Parent, as
appropriate, in good faith;
(xii) any contribution to the capital of the Parent;
(xiii) transactions between the Parent or any Subsidiary of the Parent and any Person, a director of which is also a
director of the Parent or any Subsidiary of the Parent or any direct or indirect parent of the Parent;
provided
,
however
, that such director abstains from voting as a director of the Parent or any Subsidiary of the Parent or such
direct or indirect parent, as the case may be, on any matter involving such other Person;
(xiv) pledges of
Equity Interests of Subsidiaries of the Parent (other than the Borrower);
(xv) the formation and maintenance
of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xvi) any employment agreements entered into by the Parent or any Subsidiary of the Parent in the ordinary course of business; and
(xvii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Parent
in an officer’s certificate) for the purpose of improving the consolidated tax efficiency of the Parent and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Agreement.
10.06
Free Liquidity
. The Parent will not permit the Free Liquidity to be less than $50,000,000 at any time.
10.07
Total Net Funded Debt to Total Capitalization
. The Parent will not permit the ratio of Total Net Funded Debt to Total
Capitalization to be greater than 0.70:1.00 at any time.
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10.08
Collateral Maintenance
. The Borrower will not permit the Appraised Value of the
Collateral Vessel (such value, the “
Vessel Value
”) to be less than 125% of the sum of (x) the aggregate outstanding principal amount of Loans at such time and (y) the aggregate outstanding principal amount of loans under
the Existing Jade Facility at such time;
provided
that, so long as any non-compliance in respect of this Section 10.08 is not caused by a voluntary Collateral Disposition, such non-compliance shall not constitute a Default or an Event of
Default so long as within 10 Business Days of the occurrence of such default, the Borrower shall either (i) post additional collateral reasonably satisfactory to the Required Lenders in favor of the Collateral Agent (it being understood that
cash collateral comprised of Dollars is satisfactory and that it shall be valued at par), pursuant to security documentation reasonably satisfactory in form and substance to the Collateral Agent and the Joint Lead Arrangers, in an aggregate amount
sufficient to cure such non-compliance (and shall at all times during such period and prior to satisfactory completion thereof, be diligently carrying out such actions) or (ii) repay Loans in an amount sufficient to cure such non-compliance;
provided
,
further
, that, subject to the last sentence in Section 9.01(c), the covenant in this Section 10.08 shall be tested no more than once per calendar year beginning with 2011 in the absence of the occurrence of an Event
of Default which is continuing.
10.09
Consolidated EBITDA to Consolidated Debt Service
. The Parent will not permit the
ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group at the end of any fiscal quarter, computed for the period of the four consecutive fiscal quarters ending as at the end of the relevant fiscal quarter, to be less than
1.25:1.00 unless the Free Liquidity of the NCLC Group at all times during such period of four consecutive fiscal quarters ending as at the end of such fiscal quarter was equal to or greater than $100,000,000.
10.10
Business; Change of Name
. The Parent will not, and will not permit any of its Subsidiaries to, change its name, change its
address as indicated on Schedule 14.03A to an address outside the State of Florida, or make or threaten to make any substantial change in its business as presently conducted or cease to perform its current business activities or carry on any other
business which is substantial in relation to its business as presently conducted if doing so would imperil the security created by any of the Security Documents or affect the ability of the Parent or its Subsidiaries to duly perform its obligations
under any Credit Document to which it is or may be a party from time to time (it being understood that name changes and changes of address to an address outside the State of Florida shall be permitted so long as new, relevant Security Documents are
executed and delivered (and if necessary, recorded) in a form reasonably satisfactory to the Collateral Agent), in each case in the reasonable opinion of the Facility Agent;
provided
that any new leisure or hospitality venture embarked upon
by any member of the NCLC Group (other than the Parent) shall not constitute a substantial change in its business.
10.11
Subordination of Indebtedness
. The Parent shall procure that any and all of its Indebtedness with any other Credit Party and/or any shareholder of the Parent is at all times fully subordinated to the Credit Document Obligations. The Parent
shall not make or permit to be made any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any shareholder of the Parent. Upon the occurrence of an Event
of Default, the Parent shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any other Credit Party.
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10.12
Activities of Borrower, etc.
The Parent will not permit the Borrower to, and
the Borrower will not:
(i) issue or enter into any guarantee or indemnity or otherwise become directly or
contingently liable for the obligations of any other Person, other than (x) in the ordinary course of its business as owner of the Collateral Vessel and (y) in respect of the Senior Loan Agreements;
(ii) incur any Indebtedness other than (x) under the Credit Documents and the Senior Loan Agreements, and (y) in
the ordinary course of its business as owner of the Collateral Vessel; and
(iii) engage in any business or own
any significant assets or have any material liabilities other than (i) its ownership of the Collateral Vessel and (ii) those liabilities which it is responsible for under this Agreement and the other Credit Documents to which it is a party
and the Senior Loan Agreements to which it is a party,
provided
that the Borrower may also engage in those activities that are incidental to (x) the maintenance of its existence in compliance with applicable law and (y) legal, tax
and accounting matters in connection with any of the foregoing activities.
10.13
Material Amendments or Modifications of
Construction Contracts
. The Parent will not, and will not permit any of its Subsidiaries to, make any material amendments, modifications or changes to any term or provision of either Construction Contract that would amend, modify or change
(i) the purpose of the relevant New Vessel or (ii) the Initial Construction Price under such Construction Contract in excess of 7.5% in the aggregate, in each case unless such amendment, modification or change is approved in advance by the
Facility Agent and the Hermes Agent, and the same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
10.14
No Place of Business
. None of the Credit Parties shall establish a place of business in the United Kingdom or the United States of America, with the exception of those places of business
already in existence on the Effective Date, unless prompt notice thereof is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied.
SECTION 11.
Events of Default
. Upon the occurrence of any of the following specified events (each an “
Event of
Default
”):
11.01
Payments
. The Borrower or any other Credit Party does not pay on the due date any amount of
principal or interest on any Loan (
provided
,
however
, that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank or banks through whom the relevant funds are being transmitted no
Event of Default shall occur for the purposes of this Section 11.01 until the expiry of three Business Days following the date on which such payment is due) or, within three days of the due date any other amount, payable by it under any Credit
Document to which it may at any time be a party, at the place and in the currency in which it is expressed to be payable; or
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11.02
Representations, etc
. Any representation, warranty or statement made or
repeated in, or in connection with, any Credit Document or in any accounts, certificate, statement or opinion delivered by or on behalf of any Credit Party thereunder or in connection therewith is materially incorrect when made or would, if repeated
at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct; or
11.03
Covenants
. Any Credit Party shall (i) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.01(h), Section 9.06, Section 9.11 or Section 10 or (ii) default
in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement or any other Credit Document and, in the case of this clause (ii), such default shall continue unremedied for a period of 30 days after
written notice to the Borrower by the Facility Agent or any of the Lenders; or
11.04
Default Under Other Agreements
.
(a) Any event of default occurs under any financial contract or financial document relating to any Indebtedness of any member of the NCLC Group;
(b) Any such Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise;
(c) Any Lien over any assets of any member of the NCLC Group becomes enforceable; or
(d) Any other Indebtedness of any member of the NCLC Group is not paid when due or is or becomes capable of being declared due
prematurely by reason of default or any security for the same becomes enforceable by reason of default,
provided
that:
(i) it shall not be a Default or Event of Default under this Section 11.04 unless the principal amount of the relevant
Indebtedness as described in preceding clauses (a) through (d), inclusive, exceeds $15,000,000;
(ii) no Event of Default
will arise under clauses (a), (c) and/or (d) until the earlier of (x) 30 days following the occurrence of the related event of default, Lien becoming enforceable or Indebtedness becoming capable of being declared due prematurely, as
the case may be, and (y) the acceleration of the relevant Indebtedness or the enforcement of the relevant Lien; and
(iii) if at any time hereafter the Parent or any other member of the NCLC Group agrees to the incorporation of a cross default provision
into any financial contract or financial document relating to any Indebtedness that is more onerous than this Section 11.04, then the Parent shall immediately notify the Facility Agent and that cross default provision shall be deemed to apply
to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the term of that financial contract or financial document; or
11.05
Bankruptcy, etc
. (a) Other than as expressly permitted in Section 10, any order is made or an effective resolution
passed or other action taken for the suspension of payments or dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of the NCLC Group; or
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(b) Any member of the NCLC Group shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “
Bankruptcy Code
”); or an involuntary case is commenced against any member of the NCLC Group, and the
petition is not dismissed within 45 days after the filing thereof,
provided
,
however
, that during the pendency of such period, each Lender shall be relieved of its obligation to extend credit hereunder; or a custodian (as defined
in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of any member of the NCLC Group, to operate all or any substantial portion of the business of any member of the NCLC Group, or any member of the
NCLC Group commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any
member of the NCLC Group, or there is commenced against any member of the NCLC Group any such proceeding which remains undismissed for a period of 45 days after the filing thereof, or any member of the NCLC Group is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or any member of the NCLC Group makes a general assignment for the benefit of creditors; or any Company action is taken by any member of the NCLC Group
for the purpose of effecting any of the foregoing; or
(c) A liquidator (subject to Section 11.05(e)), trustee,
administrator, receiver, manager or similar officer is appointed in respect of any member of the NCLC Group or in respect of all or any substantial part of the assets of any member of the NCLC Group and in any such case such appointment is not
withdrawn within 30 days (in this Section 11.05, the “
Grace Period
”) unless the Facility Agent considers in its sole discretion that the interest of the Lenders and/or the Agents might reasonably be expected to be adversely
affected in which event the Grace Period shall not apply; or
(d) Any member of the NCLC Group becomes or is declared
insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any applicable law; or
(e) Anything analogous to or having a substantially similar effect to any of the events specified in this Section 11.05 shall have occurred under the laws of any applicable jurisdiction (subject to
the analogous grace periods set forth herein); or
11.06
Total Loss
. An Event of Loss shall occur resulting in the
actual or constructive total loss of the Collateral Vessel or the agreed or compromised total loss of the Collateral Vessel and the proceeds of the insurance in respect thereof shall not have been received within 150 days of the event giving rise to
such Event of Loss; or
11.07
Security Documents
. At any time after the execution and delivery thereof, any of the
Security Documents shall cease to be in full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in,
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and Lien on, all of the material Collateral), in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except in connection with Permitted Liens), and subject
to no other Liens (except Permitted Liens), or any “event of default” (as defined in the Vessel Mortgage) shall occur in respect of the Vessel Mortgage; or
11.08
Guaranties
. (a) The Parent Guaranty, or any provision thereof, shall cease to be in full force or effect as to the Parent, or the Parent (or any Person acting by or on behalf of the
Parent) shall deny or disaffirm the Parent’s obligations under the Parent Guaranty; or
(b) After the execution and
delivery thereof, the Hermes Cover, or any material provision thereof, shall cease to be in full force or effect, or Hermes (or any Person acting by or on behalf of the Parent or the Hermes Agent) shall deny or disaffirm Hermes’ obligations
under the Hermes Cover; or
11.09
Judgments
. Any distress, execution, attachment or other process affects the whole or
any substantial part of the assets of any member of the NCLC Group and remains undischarged for a period of 21 days or any uninsured judgment in excess of $15,000,000 following final appeal remains unsatisfied for a period of 30 days in the case of
a judgment made in the United States and otherwise for a period of 60 days; or
11.10
Cessation of Business
. Subject to
Section 10.02, any member of the NCLC Group shall cease to carry on all or a substantial part of its business; or
11.11
Revocation of Consents
. Any authorization, approval, consent, license, exemption, filing, registration or notarization or other requirement necessary to enable any Credit Party to comply with any of its obligations under any of the Credit
Documents to which it is a party shall have been materially adversely modified, revoked or withheld or shall not remain in full force and effect and within 90 days of the date of its occurrence such event is not remedied to the satisfaction of the
Required Lenders and the Required Lenders consider in their sole discretion that such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and the Lenders or any of them; provided that
the Borrower shall not be entitled to the aforesaid 90 day period if the modification, revocation or withholding of the authorization, approval or consent is due to an act or omission of any Credit Party and the Required Lenders are satisfied in
their sole discretion that the interests of the Agents or the Lenders might reasonably be expected to be materially adversely affected; or
11.12
Unlawfulness
. At any time it is unlawful or impossible for:
(i) any Credit Party to perform any of its obligations under any Credit Document to which it is a party; or
(ii) the Agents or the Lenders, as applicable, to exercise any of their rights under any of the Credit Documents;
provided
that no Event of Default shall be deemed to have occurred (x) (except where the unlawfulness or impossibility adversely affects any Credit Party’s payment obligations under this
Agreement and/or the other Credit Documents (the determination of which shall be in the Facility Agent’s sole discretion) in which case the following provisions of this Section 11.12
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shall not apply) where the unlawfulness or impossibility prevents any Credit Party from performing its obligations (other than its payment obligations under this Agreement and the other Credit
Documents) and is cured within a period of 21 days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Credit Party, within the aforesaid period, performs its obligation(s), and (y) where the
Facility Agent and/or the Lenders, as applicable, could, in its or their sole discretion, mitigate the consequences of unlawfulness or impossibility in the manner described in Section 2.10(a) (it being understood that the costs of mitigation
shall be determined in accordance with Section 2.10(a)); or
11.13
Insurances
. Borrower shall have failed to
insure the Collateral Vessel in the manner specified in this Agreement or failed to renew the Required Insurance at least 10 Business Days prior to the date of expiry thereof and, if requested by the Facility Agent, produce prompt confirmation of
such renewal to the Facility Agent; or
11.14
Disposals
. The Borrower or any other member of the NCLC Group shall have
concealed, removed, or permitted to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other creditor; or
11.15
Government Intervention
. The authority of any member of the NCLC Group in the conduct of its business shall be wholly or
substantially curtailed by any seizure or intervention by or on behalf of any authority and within 90 days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Facility Agent reasonably considers
that the relevant occurrence is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and/or the Lenders; provided that the Borrower shall not be entitled to the aforesaid 90 day period if the
seizure or intervention executed by any authority is due to an act or omission of any member of the NCLC Group and the Facility Agent is satisfied, in its sole discretion, that the interests of the Agents and/or the Lenders might reasonably be
expected to be materially adversely affected; or
11.16
Change of Control
. A Change of Control shall occur; or
11.17
Material Adverse Change
. Any event shall occur which results in a Material Adverse Effect; or
11.18
Repudiation of Construction Contract or other Material Documents
. Any party to the Construction Contract, any Credit
Document or any other material documents related to the Credit Document Obligations hereunder shall repudiate the Construction Contract, such Credit Document or such material document in any way;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Facility Agent, upon the
written request of the Required Lenders and after having informed the Hermes Agent of such written request, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of any Agent or, any
Lender to enforce its claims against any Credit Party (
provided
that, if an Event of
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Default specified in Section 11.05 shall occur, the result which would occur upon the giving of written notice by the Facility Agent to the Borrower as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitment terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all Credit Document Obligations owing hereunder and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; and (iii) enforce, as Collateral Agent, all of the Liens and security interests
created pursuant to the Security Documents.
SECTION 12.
Agency and Security Trustee Provisions.
12.01
Appointment and Declaration of Trust
. (a) The Lenders hereby designate KfW IPEX-Bank GmbH, as Facility Agent (for
purposes of this Section 12, the term “
Facility Agent
” shall include KfW IPEX-Bank GmbH (and/or any of its Affiliates) in its capacity as Collateral Agent under the Security Documents) to act as specified herein and in the
other Credit Documents. The Lenders hereby further designate Nordea Bank Norge ASA, as Documentation Agent, to act as specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes the Agents to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agents by the terms hereof and thereof and such other powers as are reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through its respective officers, directors, agents, employees
or affiliates and, may transfer from time to time any or all of its rights, duties and obligations hereunder and under the relevant Credit Documents (in accordance with the terms thereof) to any of its banking affiliates.
(b) KfW IPEX-Bank GmbH in its capacity as Collateral Agent pursuant to the Security Documents declares that it shall hold the Collateral
in trust for the Secured Creditors in accordance with the terms contained in each Intercreditor Agreement, as applicable. The Collateral Agent shall have the right to delegate a co-agent or sub-agent from time to time to perform and benefit from any
or all rights, duties and obligations hereunder and under the relevant Security Documents (in accordance with the terms thereof and the Security Trust Deed) and, in the event that any such duties or obligations are so delegated, the Collateral Agent
is hereby authorized to enter into additional Security Documents or amendments to the then existing Security Documents to the extent it deems necessary or advisable to implement such delegation and, in connection therewith, the Parent will, or will
cause the relevant Subsidiary to, use its commercially reasonable efforts to promptly deliver any opinion of counsel that the Facility Agent may reasonably require to the reasonable satisfaction of the Facility Agent.
(c) The Lenders hereby designate Commerzbank Aktiengesellschaft, as Hermes Agent, which Agent shall be responsible for any and all
communication, information and negotiation required with Hermes in relation to the Hermes Cover. All notices and other communications provided to the Hermes Agent shall be mailed, telexed, telecopied, delivered or electronic mailed to the Notice
Office of the Hermes Agent.
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12.02
Nature of Duties
. The Agents shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Security Documents. None of the Agents nor any of their respective officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder,
under any other Credit Document, under the Hermes Cover or in connection herewith or therewith, unless caused by such Person’s gross negligence or willful misconduct (any such liability limited to the applicable Agent to whom such Person
relates). The duties of each of the Agents shall be mechanical and administrative in nature; none of the Agents shall have by reason of this Agreement or any other Credit Document any fiduciary relationship in respect of any Lender; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agents any obligations in respect of this Agreement, any other Credit Document or the Hermes Cover except as expressly
set forth herein or therein.
12.03
Lack of Reliance on the Agents
. Independently and without reliance upon the Agents,
each Lender, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Credit Parties in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith, (ii) its own appraisal of the creditworthiness of the Credit Parties and (iii) its own appraisal of the Hermes Cover and, except as expressly provided in this
Agreement, none of the Agents shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. None of the Agents shall be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement, any other Credit Document, the Hermes Cover or the financial condition of the
Credit Parties or any of them or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, any other Credit Document, the Hermes Cover, or the financial condition
of the Credit Parties or any of them or the existence or possible existence of any Default or Event of Default.
12.04
Certain Rights of the Agents
. If any of the Agents shall request instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement, any other Credit Document or the Hermes
Cover, the Agents shall be entitled to refrain from such act or taking such action unless and until the Agents shall have received instructions from the Required Lenders; and the Agents shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Agents as a result of any of the Agents acting or refraining from acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Lenders.
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12.05
Reliance
. Each of the Agents shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the
applicable Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement, any other Credit Document, the Hermes Cover and its duties hereunder and thereunder, upon advice of counsel selected by the
Facility Agent.
12.06
Indemnification
. To the extent any of the Agents is not reimbursed and indemnified by the
Borrower, the Lenders will reimburse and indemnify the applicable Agents, in proportion to their respective “percentages” as used in determining the Required Lenders (without regard to the existence of any Defaulting Lenders), for and
against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agents in performing
their respective duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document;
provided
that no Lender shall be liable to an Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct.
12.07
The Agents in their Individual Capacities
. With respect to its obligation to make Loans under this Agreement, each of the
Agents shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lenders,” “Secured
Creditors”, “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each of the Agents in their respective individual capacity. Each of the Agents may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any Credit Party or any Affiliate of any Credit Party as if it were not performing the duties specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
12.08
Resignation by an Agent
. (a) Any Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business
Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon notice of resignation by an Agent pursuant to clause (a) above, the Required Lenders shall appoint a successor Agent
hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower;
provided
that the Borrower’s consent shall not be required pursuant to this clause (b) if an Event of Default exists at
the time of appointment of a successor Agent.
(c) If a successor Agent shall not have been so appointed within the 15
Business Day period referenced in clause (a) above, the applicable Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and surplus of
not less than $500,000,000 as successor Agent who shall serve as the applicable Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Agent as provided above;
provided
that the Borrower’s consent shall
not be required pursuant to this clause (c) if an Event of Default exists at the time of appointment of a successor Agent.
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(d) If no successor Agent has been appointed pursuant to clause (b) or (c) above
by the 25th Business Day after the date such notice of resignation was given by the applicable Agent, the applicable Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent
hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Agent as provided above.
12.09
The Joint Lead Arrangers
. Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, each of Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank
ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA, is hereby appointed as a Joint Lead Arranger by the Lenders to act as specified herein and in the other Credit Documents. Each of the Joint Lead Arrangers in their respective
capacities as such shall have only the limited powers, duties, responsibilities and liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby as are set forth herein or therein; it
being understood and agreed that the Joint Lead Arrangers shall be entitled to all indemnification and reimbursement rights in favor of any of the Agents as provided for under Sections 12.06 and 14.01. Without limitation of the foregoing, none of
the Joint Lead Arrangers shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.
12.10
Impaired Agent
. (a) If, at any time, any Agent becomes an Impaired Agent, a Credit Party or a Lender which is required to make a payment under the Credit Documents to such Agent in
accordance with Section 4.03 may instead either pay that amount directly to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of
“Acceptable Bank” and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Credit Party or the Lender making the payment and designated as a trust account for the benefit of the party or parties
hereto beneficially entitled to that payment under the Credit Documents. In each case such payments must be made on the due date for payment under the Credit Documents.
(b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account
pro
rata
to their respective
entitlements.
(c) A party to this Agreement which has made a payment in accordance with this Section 12.10 shall be
discharged of the relevant payment obligation under the Credit Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
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(d) Promptly upon the appointment of a successor Agent in accordance with
Section 12.11, each party to this Agreement which has made a payment to a trust account in accordance with this Section 12.10 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount
(together with any accrued interest) to the successor Agent for distribution in accordance with Section 2.04
12.11
Replacement of an Agent
. (a) After consultation with the Parent, the Required Lenders may, by giving 30 days’ notice to an Agent (or, at any time such Agent is an Impaired Agent, by giving any shorter notice determined by the
Required Lenders) replace such Agent by appointing a successor Agent (subject to Section 12.08(b) and (c)).
(b) The
retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Borrower) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under the Credit Documents.
(c) The appointment of the successor Agent
shall take effect on the date specified in the notice from the Required Lenders to the retiring Agent. As from such date, the retiring Agent shall be discharged from any further obligation in respect of the Credit Documents but shall remain entitled
to the benefit of this Section 12.11 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d) Any successor Agent and each of the other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party to
this Agreement.
12.12
Resignation by the Hermes Agent
. (a) The Hermes Agent may resign from the performance of
all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor
Hermes Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of
resignation by the Hermes Agent, the Required Lenders shall appoint a successor Hermes Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower; provided that the Borrower’s consent
shall not be required pursuant to this clause (b) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(c) If a successor Hermes Agent shall not have been so appointed within such 15 Business Day period, the Hermes Agent, with the consent of the Borrower (which shall not be unreasonably withheld or
delayed), shall then appoint a commercial bank or trust company with capital and surplus of not less than $500,000,000 as successor Hermes Agent who shall serve as Hermes Agent hereunder or thereunder until such time, if any, as the Lenders appoint
a successor Hermes Agent as provided above; provided that the Borrower’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(d) If no successor Hermes Agent has been appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date
such notice of resignation was given by the Hermes Agent, the Hermes Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Hermes Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor Hermes Agent as provided above.
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SECTION 13.
Benefit of Agreement
. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of the parties hereto, subject to the provisions of this Section 13.
13.01
Assignments and Transfers by the Lenders
. (a) Subject to Section 13.06 and 13.07, any Lender (or any Lender together with one or more other Lenders, each an “
Existing
Lender
”) may:
(i) with the consent of the Hermes Agent and the written consent of the Federal
Republic of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für
Forderungsabtretungen AB (FAB)
)
, assign any of its rights or transfer by novation any of its rights and obligations under this Agreement or any Credit Document (including, without limitation, all of the Commitments and outstanding Loans,
or if less than all, a portion equal to at least $10,000,000 in the aggregate for such Lender’s rights and obligations), to (x) its parent company and/or any Affiliate of such assigning or transferring Lender which is at least 50% owned
(directly or indirectly) by such Lender or its parent company or (y) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such
Lender or by an Affiliate of such investment advisor, or
(ii) with the consent of the Hermes Agent, the
written consent of the Federal Republic of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts
(
Ergänzende Bestimmungen für Forderungsabtretungen AB (FAB)
)
and consent of the Borrower (which consent, in the case of the Borrower (x) shall not be unreasonably withheld or delayed, (y) shall not be required if a
Default or Event of Default shall have occurred and be continuing at such time and (z) shall be deemed to have been given ten Business Days after the Existing Lender has requested it in writing unless consent is expressly refused by the
Borrower within that time) assign any of its rights in or transfer by novation any of its rights in and obligations under all of its Commitments and outstanding Loans, or if less than all, a portion equal to at least $10,000,000 in the aggregate for
such Existing Lender’s rights and obligations, hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of
such fund or by an Affiliate of such investment advisor as a single Eligible Transferee),
each of which assignees or
transferees shall become a party to this Agreement as a Lender by execution of (I) an Assignment Agreement (in the case of assignments) and (II) a Transfer Certificate (in the case of transfers under Section 13.06);
provided
that
(x) at such time, Schedule 1.01(a) shall be deemed modified to reflect the Commitments and/or outstanding
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Loans, as the case may be , of such New Lender and of the Existing Lenders and (y) the consent of the Facility Agent shall be required in connection with any assignment or transfer pursuant
to preceding clause (ii) (which consent, in each case, shall not be unreasonably withheld or delayed); and
provided
,
further
, that at no time shall a Lender assign or transfer its rights or obligations under this Agreement to a
hedge fund, private equity fund, insurance company or other similar or related financing institution that is not in the primary business of accepting cash deposits from, and making loans to, the public.
(b) If (x) a Lender assigns or transfers any of its rights or obligations under the Credit Documents or changes its Facility Office
and (y) as a result of circumstances existing at the date the assignment, transfer or change occurs, a Credit Party would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Sections 2.08, 2.09
or 4.04, then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under that section to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if
the assignment, transfer or change had not occurred. This Section 13.01(b) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Credit Agreement.
(c) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that
the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment
becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
(d) Each assignment and/or transfer shall be made by such Existing Lender on a
pro
rata
basis with respect to such Existing Lender’s Commitments under this Agreement and the Other Term
Loan Facility, and no assignment and/or transfer of an Existing Lender’s rights and obligations hereunder may be made unless such Existing Lender, simultaneously with such assignment and/or transfer, assigns all of its parallel rights and
obligations under the Other Term Loan Facility.
13.02
Assignment or Transfer Fee
. Unless the Facility Agent otherwise
agrees and excluding an assignment or transfer (i) to an Affiliate of a Lender, (ii) made in connection with primary syndication of this Agreement or (iii) as set forth in Section 13.03, each New Lender shall, on the date upon
which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $3,500.
13.03
Assignments and Transfers to Hermes
. Nothing in this Agreement shall prevent or prohibit any Lender from assigning its rights or transferring its rights and obligations hereunder to Hermes without the consent of the Borrower and without being
required to pay the non-refundable assignment fee of $3,500 referred to in Section 13.02 above.
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13.04
Limitation of Responsibility to Existing Lenders
. (a) Unless expressly
agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the Credit Documents, the Security Documents or any other documents;
(ii) the financial condition of any Credit Party;
(iii) the performance and observance by any Credit Party of its obligations under the Credit Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection with any
Credit Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender, the other Lender Creditors and the Secured Creditors that it
(1) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Credit Party and its related entities in connection with its participation in this Agreement and has not
relied exclusively on any information provided to it by the Existing Lender or any other Lender Creditor in connection with any Credit Document or any Lien (or any other security interest) created pursuant to the Security Documents and (2) will
continue to make its own independent appraisal of the creditworthiness of each Credit Party and its related entities whilst any amount is or may be outstanding under the Credit Documents or any Commitment is in force.
(c) Nothing in any Credit Document obliges an Existing Lender to:
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred
under this Section 13; or
(ii) support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Credit Party of its obligations under the Credit Documents or otherwise.
13.05
[
Intentionally Omitted
].
13.06
Procedure and Conditions for Transfer
. (a) Subject to Section 13.01, a
transfer is effected in accordance with Section 13.06(c) when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
Section 13.06(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
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(c) On the date of the transfer:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and
obligations under the Credit Documents and in respect of the Security Documents each of the Credit Parties and the Existing Lender shall be released from further obligations towards one another under the Credit Documents and in respect of the
Security Documents and their respective rights against one another under the Credit Documents and in respect of the Security Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
(ii) each of the Credit Parties and the New Lender shall assume obligations towards one another and/or acquire rights
against one another which differ from the Discharged Rights and Obligations only insofar as that Credit Party or other member of the NCLC Group and the New Lender have assumed and/or acquired the same in place of that Credit Party and the Existing
Lender;
(iii) the Facility Agent, the Collateral Agent, the Hermes Agent the New Lender and the other Lenders
shall acquire the same rights and assume the same obligations between themselves and in respect of the Security Documents as they would have acquired and assumed had the New Lender been an original Lender with the rights, and/or obligations acquired
or assumed by it as a result of the transfer and to that extent the Facility Agent, the Collateral Agent, the Hermes Agent and the Existing Lender shall each be released from further obligations to each other under the Credit Documents, it being
understood that the indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iv) the New Lender shall become a party to this Agreement as a “Lender”; and
(v) The New Lender shall enter into the documentation required for it to accede as a party to the ECF Intercreditor
Agreements.
13.07
Procedure and Conditions for Assignment
. (a) Subject to Section 13.01, an assignment may
be effected in accordance with Section 13.07(c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
Section 13.07(b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Assignment Agreement.
(b) The Facility Agent shall only be obliged to execute an
Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the
assignment to such New Lender.
(c) On the date of the assignment:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Credit Documents and in respect of
any Lien (or any other security interest) created pursuant to the Security Documents expressed to be the subject of the assignment in the Assignment Agreement;
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(ii) the Existing Lender will be released from the obligations (the
“
Relevant Obligations
”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of any Lien (or any other security interest) created pursuant to the
Security Documents), it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iii) the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the
Relevant Obligations; and
(iv) The New Lender enters into the documentation required for it to accede as a
party to any ECF Intercreditor Agreement.
13.08
Copy of Transfer Certificate or Assignment Agreement to Parent
. The
Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Parent a copy of that Transfer Certificate or Assignment Agreement.
13.09
Security over Lenders’ Rights
. In addition to the other rights provided to Lenders under this Section 13, each
Lender may without consulting with or obtaining consent from any Credit Party, at any time charge, assign or otherwise create a Lien (or any other security interest) or declare a trust in or over (whether by way of collateral or otherwise) all or
any of its rights under any Credit Document to secure obligations of that Lender including, without limitation:
(i) any charge, assignment or other Lien (or any other security interest) or trust to secure obligations to a federal
reserve or central bank; and
(ii) in the case of any Lender which is a fund, any charge, assignment or other
Lien (or any other security interest) granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Lien (or any other security interest) or trust shall:
(i) release a Lender from any of its obligations under the Credit Documents or substitute the beneficiary of the relevant
charge, assignment or other Lien (or any other security interest) or trust for the Lender as a party to any of the Credit Documents; or
(ii) require any payments to be made by a Credit Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Credit Documents.
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13.10
Assignment by a Credit Party
. No Credit Party may assign any of its rights or
transfer by novation any of its rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Hermes Agent and the Lenders.
13.11
Lender Participations
. (a) Although any Lender may grant participations in its rights hereunder, such Lender shall
remain a “Lender” for all purposes hereunder (and may not transfer by novation its rights and obligations or assign its rights under all or any portion of its Commitments hereunder except as provided in Sections 2.11 and 13.01) and the
participant shall not constitute a “Lender” hereunder; and
(b) no Lender shall grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan in which such
participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest rates and
(n) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of
the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (y) consent to the assignment by the Borrower
of any of its rights, or transfer by the Borrower of any of its rights and obligations, under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the
Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the
participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation.
13.12
Increased Costs
. To the extent that a transfer of
all or any portion of a Lender’s Commitments and related outstanding Credit Document Obligations pursuant to Section 2.11 or Section 13.01 would, at the time of such assignment, result in increased costs under Section 2.08, 2.09
or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective assignment).
SECTION 14.
Miscellaneous
.
14.01
Payment of Expenses, etc
. The Borrower agrees that it shall: whether or not the transactions herein
contemplated are consummated, (i) pay all reasonable documented out-of-pocket costs and expenses of each of the Agents (including, without limitation, the reasonable documented fees and disbursements of White & Case LLP, Bahamian
counsel,
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Bermudian counsel, Isle of Man counsel other counsel to the Facility Agent and the Joint Lead Arrangers and local counsel) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, and in connection with their respective syndication efforts with respect to
this Agreement; (ii) pay all documented out-of-pocket costs and expenses of each of the Agents and each of the Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the fees and disbursements of counsel (excluding in-house counsel) for each of the Agents and for each of the Lenders); (iii) pay and hold the Facility Agent and each of the Lenders
harmless from and against any and all present and future stamp, documentary, transfer, sales and use, value added, excise and other similar taxes with respect to the foregoing matters, the performance of any obligation under this Agreement or any
Credit Document or any payment thereunder, and save the Facility Agent and save each of the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to
the Facility Agent or such Lender) to pay such taxes; and (iv) other than in respect of a wrongful failure by any Lender to fund its Commitments as required by this Agreement, indemnify the Agents and each Lender, and each of their respective
officers, directors, trustees, employees, representatives and agents from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not any of the Agents or any Lender is a party thereto) related to the entering into and/or performance of this Agreement or any other Credit Document or the proceeds
of any Loans hereunder or the consummation of any transactions contemplated herein, or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or
alleged presence of Hazardous Materials on the Collateral Vessel or in the air, surface water or groundwater or on the surface or subsurface of any property at any time owned or operated by the Borrower, the generation, storage, transportation,
handling, disposal or Environmental Release of Hazardous Materials at any location, whether or not owned or operated by the Borrower, the non-compliance of the Collateral Vessel or property with foreign, federal, state and local laws, regulations,
and ordinances (including applicable permits thereunder) applicable to the Collateral Vessel or property, or any Environmental Claim asserted against the Borrower or the Collateral Vessel or property at any time owned or operated by the Borrower,
including, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages,
penalties, actions, judgments, suits, costs, disbursements or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified or by reason of a failure by the Person to be indemnified to fund
its Commitments as required by this Agreement). To the extent that the undertaking to indemnify, pay or hold harmless each of the Agents or any Lender set forth in the preceding sentence may be unenforceable because it violates any law or public
policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
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14.02
Right of Set-off
. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Parent or any Subsidiary of the Parent or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without limitation, by branches and agencies of such Lender wherever located) to or for the credit or the account of the Parent or any Subsidiary of the Parent but in any event
excluding assets held in trust for any such Person against and on account of the Credit Document Obligations and liabilities of the Parent or such Subsidiary of the Parent, as applicable, to such Lender under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Credit Document Obligations purchased by such Lender pursuant to Section 14.05(b), and all other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such Lender shall have made any demand hereunder and although said Credit Document Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. Each
Lender upon the exercise of its rights to set-off pursuant to this Section 14.02 shall give notice thereof to the Facility Agent.
14.03
Notices
. Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or
electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic mailed: if to any Credit Party, at the address specified on Schedule 14.03A; if to any Lender, at its address specified
opposite its name on Schedule 14.03B; and if to the Facility Agent or the Hermes Agent, at its Notice Office; or, as to any other Credit Party, at such other address as shall be designated by such party in a written notice to the other parties
hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Parent, the Borrower and the Facility Agent;
provided
that, with respect to all notices and other communication made by
electronic mail or other electronic means, the Facility Agent, the Hermes Agent, the Lenders, the Borrower and the Parent (x) agree that they shall notify each other in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means and (y) they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when
mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and
properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Facility Agent or the Hermes Agent shall not be
effective until received by the Facility Agent or the Hermes Agent (as the case may be), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by a Lender,
the Borrower or the Parent to the Facility Agent or the Hermes Agent, only if it is addressed in such a manner as the Facility Agent shall specify for this purpose. A copy of any notice to the Facility Agent shall be delivered to the Hermes Agent at
its Notice Office. If an Agent is an Impaired Agent the parties to this Agreement may, instead of communicating with each other through such Agent, communicate with each other directly and (while such Agent is an Impaired Agent) all the provisions
of the Credit Documents which
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require communications to be made or notices to be given to or by such Agent shall be varied so that communications may be made and notices given to or by the relevant parties to this Agreement
directly. This provision shall not operate after a replacement Agent has been appointed.
14.04
No Waiver; Remedies
Cumulative
. No failure or delay on the part of an Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and an Agent
or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which an Agent or any Lender would
otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of an Agent or any Lender to any
other or further action in any circumstances without notice or demand.
14.05
Payments Pro Rata
. (a) Except as
otherwise provided in this Agreement, the Facility Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Credit Document Obligations hereunder, it shall distribute such payment to the
Lenders (other than any Lender that has consented in writing to waive its
pro
rata
share of any such payment)
pro
rata
based upon their respective shares, if any, of the Credit Document Obligations with respect to which
such payment was received.
(b) Other than in connection with assignments and participations (which are governed by
Section 13), each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action,
by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Commitment Commission, of a sum which with respect to the related sum or sums received by
other Lenders is in a greater proportion than the total of such Credit Document Obligation then owed and due to such Lender bears to the total of such Credit Document Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Credit Document Obligations of the respective Credit Party to such Lenders in such amount as shall
result in a proportional participation by all the Lenders in such amount;
provided
that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 14.05(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
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14.06
Calculations; Computations
. (a) The financial statements to be furnished
to the Lenders pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by the Parent to the Lenders). In addition, all computations determining compliance with the financial covenants set forth in Sections 10.06 through 10.09, inclusive, shall utilize accounting principles and policies in
conformity with those used to prepare the historical financial statements delivered to the Lenders for the fiscal year of the Parent ended December 31, 2009 (with the foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called “
GAAP
”). Unless otherwise noted, all references in this Agreement to “generally accepted accounting principles” shall mean generally accepted accounting principles as in effect in the United States.
(b) All computations of interest and Commitment Commission hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Commitment Commission are payable.
14.07
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
. (a) THIS AGREEMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE
GOVERNED BY ENGLISH LAW.
(b)
THE COURTS OF ENGLAND HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING A DISPUTE RELATING TO THE EXISTENCE, VALIDITY OR TERMINATION OF THIS AGREEMENT OR ANY NON-CONTRACTUAL OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) (A
“
DISPUTE
”)
.
THE PARTIES HERETO AGREE THAT THE COURTS OF ENGLAND ARE THE MOST APPROPRIATE AND CONVENIENT COURTS TO SETTLE DISPUTES AND ACCORDINGLY NO PARTY HERETO WILL ARGUE TO THE CONTRARY. THIS SECTION 14.07 IS FOR THE
BENEFIT OF THE LENDERS, AGENTS AND SECURED CREDITORS. AS A RESULT, NO SUCH PARTY SHALL BE PREVENTED FROM TAKING PROCEEDINGS RELATING TO A DISPUTE IN ANY OTHER COURTS WITH JURISDICTION. TO THE EXTENT ALLOWED BY LAW, THE LENDERS, AGENTS AND SECURED
CREDITORS MAY TAKE CONCURRENT PROCEEDINGS IN ANY NUMBER OF JURISDICTIONS.
(c)
WITHOUT PREJUDICE TO ANY OTHER
MODE OF SERVICE ALLOWED UNDER ANY RELEVANT LAW, EACH CREDIT PARTY (OTHER THAN A CREDIT PARTY INCORPORATED IN ENGLAND AND WALES): (I)IRREVOCABLY APPOINTS EC3 SERVICES LIMITED, HAVING ITS REGISTERED OFFICE AT 51 EASTCHEAP, LONDON, EC3M 1JP, AS ITS
AGENT FOR SERVICE OF PROCESS IN RELATION TO ANY PROCEEDINGS BEFORE THE ENGLISH COURTS IN CONNECTION WITH ANY CREDIT DOCUMENT AND (II) AGREES THAT FAILURE BY AN AGENT FOR SERVICE OF PROCESS TO NOTIFY THE RELEVANT CREDIT PARTY OF THE PROCESS WILL
NOT INVALIDATE THE PROCEEDINGS CONCERNED. IF ANY PERSON APPOINTED AS AN AGENT FOR
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SERVICE OF PROCESS IS UNABLE FOR ANY REASON TO ACT AS AGENT FOR SERVICE OF PROCESS, THE PARENT (ON BEHALF OF ALL THE CREDIT PARTIES) MUST IMMEDIATELY (AND IN ANY EVENT WITHIN FIVE DAYS OF SUCH
EVENT TAKING PLACE) APPOINT ANOTHER AGENT ON TERMS ACCEPTABLE TO THE FACILITY AGENT. FAILING THIS, THE FACILITY AGENT MAY APPOINT ANOTHER AGENT FOR THIS PURPOSE.
EACH PARTY TO THIS AGREEMENT EXPRESSLY AGREES AND CONSENTS TO THE PROVISIONS OF THIS SECTION 14.07.
14.08
Counterparts
. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Facility Agent.
14.09
Effectiveness
. This Agreement shall take effect as a deed on the date (the “
Effective Date
”) on which
(i) the Borrower, the Guarantor, the Agents and each of the Lenders who are initially parties hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Facility Agent or,
in the case of the Lenders and the other Agents, shall have given to the Facility Agent written or facsimile notice (actually received) at such office that the same has been signed and mailed to it, (ii) the Borrower shall have paid to the
Facility Agent for its own account and/or the account of Lenders and/or Agents, as the case may be, the fees required to be paid pursuant to that certain commitment letter, dated October 11, 2010, among the Parent, the Hermes Agent, Deutsche
Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA (the “
Commitment Letter
”) and (iii) the Credit Parties shall have provided (x) the “Know Your
Customer” information required pursuant to the USA PATRIOT Act (Title III of Pub.: 107-56 (signed into law October 26, 2001)) (the “
PATRIOT Act
”) and (y) such other documentation and evidence necessary in order to
carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or any Lender in connection
with each of the Facility Agent’s, the Hermes Agent’s, Hermes’ and each Lender’s internal compliance regulations. The Facility Agent will give the Parent, the Borrower and each Lender prompt written notice of the occurrence of
the Effective Date.
14.10
Headings Descriptive
. The headings of the several sections and subsections of this Agreement
are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
14.11
Amendment or Waiver; etc
. (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Credit Parties party thereto, the Hermes Agent and the Required Lenders,
provided
that no such change, waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender), (i) extend the final scheduled maturity of any Loan, extend the
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timing for or reduce the principal amount of any Scheduled Repayment, increase or extend any Commitment (it being understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Commitments shall not constitute an increase of the Commitment of any Lender), or reduce the rate (including, without limitation, the Applicable Margin) or extend the time of payment
of interest on any Loan or Commitment Commission or fees (except (x) in connection with the waiver of applicability of any post-default increase in interest rates and (y) any amendment or modification to the definitions used in the
financial covenants set forth in Sections 10.06 through 10.09, inclusive, in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i)), or reduce the principal amount thereof (except to the extent
repaid in cash), (ii) release any of the Collateral (except as expressly provided in the Credit Documents) under any of the Security Documents, (iii) amend, modify or waive any provision of Section 13 or this Section 14.11,
(iv) change the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the extensions of Loans and Commitments are included on the Effective Date) or a provision which expressly requires the consent of all the Lenders, (v) consent to the assignment and/or transfer by the Parent
and/or Borrower of any of its rights and obligations under this Agreement, or (vi) replace the Parent Guaranty or release the Parent Guaranty from the relevant guarantee to which such Guarantor is a party (other than as provided in such
guarantee);
provided
,
further
, that no such change, waiver, discharge or termination shall (u) without the consent of Hermes, amend, modify or waive any provision that relates to the rights or obligations of Hermes and
(v) without the consent of each Agent and/or each Joint Lead Arranger, as applicable, amend, modify or waive any provision relating to the rights or obligations of such Agent and/or such Joint Lead Arranger, as applicable.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 14.11(a), the consent of the Required Lenders is obtained but the consent of each Lender (other than any Defaulting Lender) is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders with one or more Replacement Lenders
pursuant to Section 2.11 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Commitment (if such
Lender’s consent is required as a result of its Commitment), and/or repay outstanding Loans and terminate any outstanding Commitments of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with
Section 4.01(d),
provided
that, unless the Commitments are terminated, and Loans repaid, pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed
action) and the Hermes Agent shall specifically consent thereto,
provided
,
further
, that in any event the Borrower shall not have the right to replace a Lender, terminate its Commitment or repay its Loans solely as a result of the
exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 14.11(a).
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14.12
Survival
. All indemnities set forth herein including, without limitation, in
Sections 2.08, 2.09, 2.10, 4.04, 14.01 and 14.05 shall, subject to Section 14.13 (to the extent applicable), survive the execution, delivery and termination of this Agreement and the making and repayment of the Loans.
14.13
Domicile of Loans
. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or
Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 14.13 would, at the time of such transfer, result in increased costs under Section 2.08,
2.09, or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective transfer).
14.14
Confidentiality
. Each Lender
agrees that it will use its best efforts not to disclose without the prior consent of the Parent or the Borrower (other than to their respective Affiliates or their respective Affiliates’ employees, auditors, advisors or counsel or to another
Lender if the Lender or such Lender’s holding or parent company, Affiliates or board of trustees in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the
provisions of this Section 14.14 to the same extent as such Lender) any information with respect to the Parent or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document,
provided
that the Hermes Agent may disclose any information to Hermes,
provided
,
further
, that any Lender may disclose any such information (a) as has become generally available to the public other than by virtue of a
breach of this Section 14.14 by the respective Lender, (b) as may be required in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or
similar organizations (whether in the United States, the United Kingdom or elsewhere) or their successors, (c) as may be required in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Lender, (e) to an Agent (f) to any prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Commitments or any interest
therein by such Lender,
provided
that such prospective transferee expressly agrees to be bound by the confidentiality provisions contained in this Section 14.14 and (g) to Hermes and/or the Federal Republic of Germany and/or the
European Union and/or any agency thereof or any person acting or purporting to act on any of their behalves. In the case of Section 14.14(g), each of the Parent and the Borrower acknowledges and agrees that any such information may be used by
Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or any person acting or purporting to act on any of their behalves for statistical purposes and/or for reports of a general nature.
14.15
Register
. The Facility Agent shall maintain a register (the “
Register
”) on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment and prepayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the assignment or transfer of the Commitments of such Lender and the rights to the principal of,
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and interest on, any Loan made pursuant to such Commitments shall not be effective until such assignment or transfer is recorded on the Register maintained by the Facility Agent with respect to
ownership of such Commitments and Loans. Prior to such recordation all amounts owing to the transferor with respect to such Commitments and Loans shall remain owing to the transferor. The registration of an assignment or transfer of all or part of
any Commitments and Loans (as the case may be) shall be recorded by the Facility Agent on the Register only upon the acceptance by the Facility Agent of a properly executed and delivered Transfer Certificate or Assignment Agreement pursuant to
Section 13.06(a) or 13.07(a), respectively.
14.16
Third Party Rights
. Other than the Other Creditors with respect
to Section 4.05, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement unless expressly provided to the contrary in a
Credit Document. Notwithstanding any term of any Credit Document, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.
14.17
Judgment Currency
. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Facility Agent could purchase the specified currency with such other currency at the Facility Agent’s Frankfurt office on the Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or an Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or an Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or an Agent (as the case may be) may in accordance with normal banking procedures purchase the
specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to such Lender or an Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or an Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds the
sum originally due to any Lender or an Agent, as the case may be, in the specified currency, such Lender or an Agent, as the case may be, agrees to remit such excess to the Borrower.
14.18
Language
. All correspondence, including, without limitation, all notices, reports and/or certificates, delivered by any
Credit Party to an Agent or any Lender shall, unless otherwise agreed by the respective recipients thereof, be submitted in the English language or, to the extent the original of such document is not in the English language, such document shall be
delivered with a certified English translation thereof. In the event of any conflict between the English translation and the original text of any document, the English translation shall prevail unless the original text is a statutory instrument,
legal process or any other document of a similar type or a notice, demand or other communication from Hermes or in relation to the Hermes Cover.
-98-
14.19
Waiver of Immunity
. The Borrower, in respect of itself, each other Credit
Party, its and their process agents, and its and their properties and revenues, hereby irrevocably agrees that, to the extent that the Borrower, any other Credit Party or any of its or their properties has or may hereafter acquire any right of
immunity from any legal proceedings, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany, the Isle of Man or elsewhere, to enforce or collect upon the Credit Document Obligations of the Borrower or any other Credit Party
related to or arising from the transactions contemplated by any of the Credit Documents, including, without limitation, immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a
judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, the Borrower, for itself and on behalf of the other Credit Parties, hereby expressly waives, to the
fullest extent permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany, the Isle of Man or
elsewhere.
14.20 “
Know Your Customer” Notice
. Each Lender hereby notifies each Credit Party that pursuant to
the requirements of the PATRIOT Act and/or other applicable laws and regulations, it is required to obtain, verify, and record information that identifies each Credit Party, which information includes the name of each Credit Party and other
information that will allow such Lender to identify each Credit Party in accordance with the PATRIOT Act and/or such other applicable laws and regulations, and each Credit Party agrees to provide such information from time to time to any Lender.
14.21
Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
. (a) In the event that any Person
conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of the Collateral to a Person that is not (and is not required to become) a Credit Party in a transaction permitted by this Agreement or the Credit Documents
(including pursuant to a valid waiver or consent), each Lender hereby consents to the release and hereby directs the Collateral Agent to release any Liens created by any Credit Document in respect of such Collateral, and, in the case of a
disposition of all of the Equity Interests of any Credit Party (other than the Borrower) in a transaction permitted by this Agreement and as a result of which such Credit Party would not be required to guaranty the Credit Document Obligations
pursuant to Section 15, each Lender hereby consents to the release of such Credit Party’s obligations under the relevant guarantee to which it is a party. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees,
upon receipt of reasonable advance notice from the Borrower, to execute and deliver or, at the Borrower’s expense, file such documents and perform other actions reasonably necessary to release the relevant guarantee, as applicable, and the
Liens when and as directed pursuant to this Section 14.21. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Borrower and at the Borrower’s expense to terminate the Liens and security
interests created by the Credit Documents when all the Credit Document Obligations (other than contingent indemnification Credit Document Obligations and expense reimbursement claims to the extent no claim therefore has been made) are paid in full
and Commitments are terminated. Any representation, warranty or covenant contained in any Credit Document relating to any such Equity Interests or, asset of the Borrower shall no longer be deemed to be made once such Equity Interests or asset is so
conveyed, sold, leased, assigned, transferred or disposed of.
-99-
(b) In the event that the Borrower desires to implement a Flag Jurisdiction Transfer with
respect to the Collateral Vessel, upon receipt of reasonable advance notice thereof from the Borrower, the Collateral Agent shall use commercially reasonably efforts to provide, or (as necessary) procure the provision of, all such reasonable
assistance as any Credit Party may request from time to time in relation to (i) the Flag Jurisdiction Transfer, (ii) the related deregistration of the Collateral Vessel from its previous flag jurisdiction, and (iii) the release and
discharge of the related Security Documents provided that the relevant Credit Party shall pay all documented out of pocket costs and expenses reasonably incurred by the Collateral Agent or a Secured Creditor in connection with provision of such
assistance. Each Lender hereby consents, in connection with any Flag Jurisdiction Transfer and subject to the satisfaction of the requirements thereof to be satisfied by the relevant Credit Party, to (i) deregister the Collateral
Vessel from its previous flag jurisdiction and (ii) release and hereby direct the Collateral Agent to release the Collateral Vessel Mortgage. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees to execute and
deliver or, at the Borrower’s expense, file such documents and perform other actions reasonably necessary to release the Vessel Mortgage when and as directed pursuant to this Section 14.21(b).
14.22
Partial Invalidity
. If, at any time, any provision of the Credit Documents is or becomes illegal, invalid or unenforceable
in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be
affected or impaired. Any such illegal, invalid or unenforceable provision shall to the extent possible be substituted by a legal, valid and enforceable provision which reflects the intention of the parties to this Agreement.
SECTION 15.
Parent Guaranty
.
15.01
Guaranty and Indemnity
. The Parent irrevocably and unconditionally:
(i) guarantees to each Lender Creditor punctual performance by each other Credit Party of all that Credit Party’s Credit Document Obligations under the Credit Documents; or
(ii) undertakes with each Lender Creditor that whenever another Credit Party does not pay any amount when due under or in
connection with any Credit Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(iii) agrees with each Lender Creditor that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Lender
Creditor immediately on demand against any cost, loss or liability it incurs as a result of a Credit Party not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Credit Document
on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Section 15 if the amount claimed had been recoverable on the basis of a guarantee.
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15.02
Continuing Guaranty
. This guarantee is a continuing guarantee and will extend
to the ultimate balance of sums payable by any Credit Party under the Credit Documents, regardless of any intermediate payment or discharge in whole or in part.
15.03
Reinstatement
. If any discharge, release or arrangement (whether in respect of the obligations of any Credit Party or any security for those obligations or otherwise) is made by a Lender
Creditor in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this
Section 15 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
15.04
Waiver
of Defenses
. The obligations of the Guarantor under this Section 15 will not be affected by an act, omission, matter or thing which, but for this Section 15, would reduce, release or prejudice any of its obligations under this
Section 15 (without limitation and whether or not known to it or any Lender Creditor) including:
(i) any
time, waiver or consent granted to, or composition with, any Credit Party or other person;
(ii) the release of
any other Credit Party or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Credit Party or other
person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status
of a Credit Party or any other person;
(v) any amendment, novation, supplement, extension restatement (however
fundamental and whether or not more onerous) or replacement of a Credit Document or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new
facility under any Credit Document or other document or security;
(vi) any unenforceability, illegality or
invalidity of any obligation of any person under any Credit Document or any other document or security; or
(vii) any insolvency or similar proceedings.
15.05
Guarantor Intent
. Without prejudice to the generality of Section 15.04, the Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any
(however fundamental) variation, increase, extension or addition of or to any of the Credit Documents and/or any facility or amount made available under any of the Credit Documents for the purposes of or in connection with any of the following:
business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out
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restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any
such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
15.06
Immediate Recourse
. The Guarantor waives any right it may have of first requiring any Credit Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or
security or claim payment from any person before claiming from the Guarantor under this Section 15. This waiver applies irrespective of any law or any provision of a Credit Document to the contrary.
15.07
Appropriations
. Until all amounts which may be or become payable by the Credit Parties under or in connection with the
Credit Documents have been irrevocably paid in full, each Lender Creditor (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Lender Creditor (or any trustee or agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
(ii) hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the
Guarantor’s liability under this Section 15.
15.08
Deferral of Guarantor’s Rights
. Until all amounts
which may be or become payable by the Credit Parties under or in connection with the Credit Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, the Guarantor will not exercise any rights which it may have by
reason of performance by it of its obligations under the Credit Documents or by reason of any amount being payable, or liability arising, under this Section 15:
(i) to be indemnified by a Credit Party;
(ii) to claim any contribution from any other guarantor of any Credit Party’s obligations under the Credit Documents;
(iii) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Lender Creditors under the Credit Documents or of any other guarantee or security taken pursuant to, or in connection with, the Credit Documents by any Lender Creditor;
(iv) to bring legal or other proceedings for an order requiring any Credit Party to make any payment, or perform any
obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Section 15.01;
(v) to exercise any right of set-off against any Credit Party; and/or
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(vi) to claim or prove as a creditor of any Credit Party in competition with
any Lender Creditor.
If the Guarantor receives any benefit, payment or distribution in relation to such rights
it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Lender Creditors by the Credit Parties under or in connection with the Credit Documents to be repaid in full on
trust for the Lender Creditors and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Section 4.
15.09
Additional Security
. This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by any Credit Party.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as a deed on the date first above written.
Signed as a deed and delivered on behalf of NCL CORPORATION LTD., a
Bermuda company, as Parent and Guarantor, by [full name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
Signed as a deed and delivered on behalf of PRIDE OF HAWAII, LLC, a Delaware limited liability company, as Borrower, by [full name of person signing],
being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated [
], 2010
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatory
Signed as a deed and delivered on behalf of KFW IPEX-BANK GMBH, a bank organized under the laws of Germany,
individually and as Facility Agent, Collateral Agent and a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of NORDEA BANK NORGE ASA, a bank organized under the laws of
Norway, individually and as Documentation Agent and a Joint Lead Arranger by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of DNB NOR BANK ASA, a bank organized under the laws of Norway,
individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, a bank organized under
the laws of Germany, individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of HSBC BANK PLC, a bank organized under the laws of England,
individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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Signed as a deed and delivered on behalf of COMMERZBANK AKTIENGESELLSCHAFT, a bank organized under the laws
of Germany, as Hermes Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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/s/ Authorized Signatory
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Title:
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By:
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/s/ Authorized Signatory
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Title:
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Authorized signatories
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SCHEDULE 1.01(a)
COMMITMENTS
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Lender
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Commitments
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Percentage
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Deutsche Schiffsbank Aktiengesellschaft
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[*
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]
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[*
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]
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DnB NOR Bank ASA
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[*
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]
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[*
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]
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HSBC Bank plc
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[*
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]
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[*
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]
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KfW IPEX-Bank GmbH
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[*
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]
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[*
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]
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Nordea Bank Norge ASA
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[*
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]
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[*
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]
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Total
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|
€
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126,075,000
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100
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%
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SCHEDULE 1.01(b)
EXISTING JADE SCHEDULED REPAYMENTS
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Date
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Jade Availability
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April 19, 2011
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$
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18,599,000
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October 19, 2011
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$
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18,599,000
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April 19, 2012
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$
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18,599,000
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|
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October 19, 2012
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|
$
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18,599,000
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April 19, 2013
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|
$
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18,599,000
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|
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October 21, 2013
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|
$
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18,599,000
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April 19, 2014
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|
$
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18,599,000
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SCHEDULE 1.01(c)
MANDATORY COSTS
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1.
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The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
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2.
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On the first day of each Interest Period (or as soon as possible thereafter) the Facility Agent shall calculate, as a percentage rate, a rate (the “
Additional
Cost Rate
”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Facility Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
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3.
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The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Facility
Agent. This percentage will be certified by that Lender in its notice to the Facility Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
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4.
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The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows:
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in relation to a sterling Loan:
[*] per cent. per annum
in relation to a Loan in any currency other than sterling:
[*] per cent. per annum.
Where:
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A
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is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
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B
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is the percentage rate of interest (excluding the Applicable Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified
in paragraph (b) of Section 2.06 payable for the relevant Interest Period on the Loan.
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C
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is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of
England.
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D
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is the percentage rate per annum payable by the Bank of England to the Facility Agent on interest bearing Special Deposits.
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E
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is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Facility Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
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5.
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For the purposes of this Schedule:
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“
Eligible Liabilities
” and “
Special Deposits
” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
“
Fees Rules
” means the rules on periodic fees contained
in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
“
Fee Tariffs
” means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit
acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate);
“
Participating Member State
” means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.
“
Tariff Base
” has the meaning given to it in,
and will be calculated in accordance with, the Fees Rules; and
“
Unpaid Sum
” means any sum due and payable
but unpaid by any Credit Party under the Credit Documents.
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6.
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In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not
as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
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7.
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Facility
Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
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8.
|
Each Lender shall supply any information required by the Facility Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
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|
|
a)
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the jurisdiction of its Facility Office; and
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|
|
b)
|
any other information that the Facility Agent may reasonably require for such purpose.
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Each Lender shall promptly notify the Facility Agent of any change to the information provided by it pursuant to this paragraph.
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9.
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the
Facility Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
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|
10.
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The Facility Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall
be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
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|
11.
|
The Facility Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
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|
12.
|
Any determination by the Facility Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
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13.
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The Facility Agent may from time to time, after consultation with the Parent and the Lenders, determine and notify to all parties to the Credit Agreement any amendments
which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
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SCHEDULE 5.06
NOTICES, ACKNOWLEDGMENTS AND CONSENTS
Notices
1. Notice of Assignment of the Construction Contract for Breakaway One, Ltd. in the form of Part 1 of Schedule 1 to the Vessel 1 Assignment of Contracts
shall be delivered to the Yard.
2. Notice of Assignment of the Construction Contract for Breakaway Two, Ltd. in the form of Part 1 of
Schedule 1 to the Vessel 2 Assignment of Contracts shall be delivered to the Yard.
3. Notice of Assignment of the Refund Guarantees for
Breakaway One, Ltd. in the form of either (x) Part 2 of Schedule 1 to the Vessel 1 Assignment of Contracts or (y) Schedule 1 to the Vessel 1 Assignment of KfW Refund Guarantee, as applicable, shall be delivered to the applicable issuer of
Refund Guarantee(s) issued on or prior to the Initial Borrowing Date (under and as defined in the Breakaway One Facility).
4. Notice of
Assignment of the Refund Guarantees for Breakaway Two, Ltd. in the form of either (x) Part 2 of Schedule 1 to the Vessel 2 Assignment of Contracts or (y) Schedule 1 to the Vessel 2 Assignment of KfW Refund Guarantee, as applicable, shall
be delivered to the applicable issuer of Refund Guarantee(s) issued on or prior to the Initial Borrowing Date (under and as defined in the Breakaway Two Facility).
Financing Statements
1. UCC-1 shall be filed with the Florida Secured Transaction Registry
naming Breakaway One, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
2. UCC-1 shall be filed
with the Florida Secured Transaction Registry naming Breakaway Two, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
3. UCC-1 shall be filed with the Secretary of State for the State of Delaware naming Pride of Hawaii, LLC as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
SCHEDULE 5.12
INITIAL BORROWING DATE OPINIONS
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1.
|
Pursuant to Section 5.12(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms used in this Clause 1 have the meanings ascribed to them in such opinion):
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|
|
A.
|
The Borrower is a limited liability company existing under the laws of Delaware, with power under the Delaware Limited Liability Company Act (the “
Delaware LLC
Act
”) and its certificate of formation and limited liability company agreement (its “
LLC Organizational Documents
”) to enter into each of the Transaction Documents to which it is a party, and to perform its obligations
thereunder.
|
|
|
B.
|
The execution, delivery and performance by the Borrower of each of the Transaction Documents to which it is a party have been duly authorized by all necessary action
under the Delaware LLC Act and its LLC Organizational Documents on the part of the Borrower.
|
|
|
C.
|
The Power of Attorney has been duly executed and delivered by the Borrower.
|
|
|
D.
|
Certain of the Transaction Documents provide that they are to be governed by English law. To the extent that such Transaction Documents are governed by English law or
the law of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to such Transaction Documents.
However, we are of the opinion that if the Transaction Documents were governed (or are actually governed, as the case may be) by the laws of the state of New York (without reference to New York choice of law principles that would result in the
application of the laws of another jurisdiction), the execution and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document
to which it is a party will not, violate, breach, or constitute a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the
assets of such Credit Party or give any other party thereto the right to accelerate under, any existing obligation or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to
the Officer’s Certificate. If any Other Agreement is governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical
terms would mean what lawyers generally understand them to mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to
such provision would require making any financial, accounting or mathematical calculation or determination.
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|
|
E.
|
The execution and delivery by the Borrower of the Transaction Documents to which it is a party do not, and the Borrower’s performance of its obligations under each
such Transaction Document will not, violate the current Delaware LLC Act or any current federal statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to the Borrower or to
transactions of the type contemplated by the Transaction Documents.
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|
|
F.
|
Upon the filing of the Delaware UCC Financing Statements with the Secretary of State of the State of Delaware (the “
Delaware Filing Office
”), the
Facility Agent will have a perfected security interest in the Borrower’s interest in the Earnings (as defined in the Assignment of Earnings) in which a security interest may be perfected under Delaware Article 9 (as defined below) by the filing
of a financing statement in the State of Delaware.
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|
|
(a)
|
No order, consent, permit or approval of any federal governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable
to transactions of the type contemplated by the Transaction Documents is required on the part of the Borrower for the execution and delivery of, and performance of its obligations under, the Transaction Documents.
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|
2.
|
Pursuant to Section 5.12(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, CAINS Advocates Limited, special Isle of Man
counsel to the Borrower, opines as follows (capitalized terms used in this Clause 2 have the meanings ascribed to them in such opinion):
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Status
The Borrower is a company limited by shares duly incorporated and
validly existing under the laws of the Isle of Man and possesses the capacity to sue and to be sued in its own name.
No
Liquidator or Receiver
As far as was shown on the Search Date on the file of the Borrower maintained by the Registrar, no
steps have been or are being taken to appoint a receiver, liquidator or analogous person or body over or to wind up or dissolve the Borrower or to take analogous action.
Capacity
The Borrower has the corporate capacity to execute, deliver and perform its obligations under the Documents.
Authority
The Borrower has passed all necessary resolutions and taken all
necessary corporate actions to authorise the execution, delivery and performance of each of the Documents and to incur the obligations referred to therein, and each of the Documents has been validly executed by and on behalf of the Borrower.
Authority and Due Execution
The Documents have been executed by duly authorised representatives of the Borrower and constitute legal, valid and binding obligations of the Borrower enforceable in accordance with their respective
terms and conditions.
Approvals and Consents
No authorisations, approvals and consents (including without limitation any exchange control consents) from any governmental or other authorities in the Isle of Man are required to be obtained by the
Borrower in relation to the execution and delivery by it of the Documents or the exercise of its rights and the performance of its obligations thereunder or to make the Documents admissible in evidence in the Isle of Man.
Non Conflict
The execution, delivery and performance of the Documents by the Borrower does not and will not:
(i) contravene any existing law or regulation of the Isle of Man to which it is subject; or
(ii) contravene any provision of the Borrower’s Memorandum and Articles of Association.
Filings and Registrations
In order not to be void against the liquidator
and any creditor of the Borrower, each of the Security Documents should be delivered to the Registrar (together with the prescribed particulars) within one month of the date of its creation (pursuant to Section 138 of the Act); save for such
delivery, it is not necessary or advisable under the laws of the Isle of Man, in order to ensure the validity, effectiveness and enforceability of the Documents, that the same be filed, registered or recorded in any public office in the Isle of Man
or that any other action be taken.
Stamp and Registration Duties
The Documents do not give rise to any registration duty, stamp duty or similar duty in or imposed by the Isle of Man or any authority or
agency thereof.
Immunity
The Borrower is subject to the jurisdiction of the Courts of the Isle of Man and is not entitled to claim any immunity from suit or execution of any judgment on the ground of sovereignty or otherwise.
Choice of Law
The choice of law provision in each of the Documents (save for the Mortgage) (providing for the same to be governed and construed in accordance with the laws of England) is a valid and binding obligation
of the Borrower and will be recognised by the Courts of the Isle of Man as the proper law of the Documents.
Submission to
Jurisdiction
The submission by the Borrower to the jurisdiction of the Courts of England contained in each of the
Documents (save for the Mortgage) is a valid submission and is binding on the Borrower.
Enforcement of English
Judgment
Any judgment for a fixed sum of money obtained against the Borrower in the High Court of England will be
enforceable against it in the Isle of Man provided that such judgment is final and conclusive and was not obtained by fraud or contrary to public policy of the Isle of Man at the time or contrary to the rules of natural justice in the Isle of Man at
the time and provided that the correct procedures under the laws of the Isle of Man (including registration of the English judgment with the Isle of Man Courts) are complied with.
Enforcement of Bahamian Judgment
There is no statutory procedure in the Isle of Man for the recognition or enforcement of judgments of the courts of the Bahamas. However, under Isle of Man common law, a foreign judgment in personam given
by the court of a foreign country with jurisdiction to give that judgment may be recognised and enforced by an action for the amount due under it provided that the judgment: (i) is for a debt or definite sum of money (not being a sum payable in
respect of taxes or other charges of a like nature or in respect of a fine or other penalty); (ii) is final and conclusive; (iii) was not obtained by fraud; (iv) is not one whose enforcement would be contrary to public policy in the
Isle of Man; and (v) was not obtained in proceedings which were opposed to natural justice in the Isle of Man.
No
Isle of Man Licensing Requirement
It is not necessary in order to enable the Lenders to claim and enforce in the Isle of
Man any right afforded by the Documents, or by reason of the execution, delivery and performance of the Documents by the Lenders, that the Lenders should be licensed, qualified or otherwise entitled to carry on business in or otherwise registered
with any authority of or in the Isle of Man.
No Deemed Isle of Man Residence
The Lenders will not be deemed to be resident, domiciled or carrying on business in the Isle of Man by reason only of the execution,
performance and/or enforcement of any of the Documents.
No Default Proceedings Revealed
As at the Search Date, our search of the Court Indices via the General Registry website in the Isle of Man did not reveal the existence of
any default proceedings in the Isle of Man to which the Borrower is a party.
No Exchange Control
No foreign exchange control regulations are in existence in the Isle of Man in relation to the exchange and remittance of sterling or any
other currency from the Isle of Man and no authorisations, approvals or consents will be required from any authority in the Isle of Man in relation to the exchange and remittance of sterling and any other currency whether awarded by reason of a
judgment or otherwise falling due and having been paid in the Isle of Man in relation to any obligation set out in any of the Documents.
Isle of Man Withholding Tax
All payments made by the Borrower under the
Documents may be made without deduction of any Isle of Man withholding tax.
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3.
|
Pursuant to Section 5.12(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, Cox Hallett Wilkinson, special Bermuda
counsel to the Credit Parties, opines as follows (capitalized terms used in this Clause 3 have the meanings ascribed to them in such opinion):
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|
|
(a)
|
Each of the Parent, Breakaway One and Breakaway Two (for the purpose of this Clause 3 of Schedule 5.12 only, the “Companies) is duly incorporated with limited
liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck
off the Register of Companies and thereby cease to exist under the laws of Bermuda).
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|
(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
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|
|
(i)
|
are within its corporate powers and have been duly authorised; and
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|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
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|
|
(c)
|
Each of the Opinion Documents has been duly executed by the Companies party thereto and constitutes legal, valid and binding obligations of such Companies, enforceable
in Bermuda in accordance with its terms.
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|
|
(d)
|
Based solely on the Litigation Searches, there are no judgments against, nor legal or governmental actions or proceedings pending in Bermuda to which any of the
Companies is subject.
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|
|
(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
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|
|
(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
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|
|
(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
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|
|
(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
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|
|
(i)
|
The choice of the English Laws as the governing law of the Opinion Documents is a valid choice of law and the submission by the Companies to the exclusive jurisdiction
of the English Courts is valid and binding upon the Companies and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
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|
(i)
|
which such court considers to be procedural in nature;
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|
|
(ii)
|
which are revenue or penal laws; or
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|
|
(iii)
|
the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
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|
|
(j)
|
The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
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(k)
|
None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
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(l)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
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(m)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Companies by any party to the Opinion Documents based
upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in the
Protection of Trading Interests Act 1981) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the merits of the case provided
that:
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|
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(i)
|
the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
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|
|
(ii)
|
the judgment has not been given on appeal from a court which is not a superior court; and
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|
|
(iii)
|
the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
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(n)
|
Under Section 3 of the 1958 Act, the registration of the judgment of the English Courts in the Supreme Court of Bermuda involves the conversion of the judgment
debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by the Supreme Court of Bermuda to
be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement.
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(o)
|
No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
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(p)
|
It is not necessary under the laws of Bermuda:
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|
|
(i)
|
in order to enable any party to enforce its rights under the Opinion Documents; or
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|
(ii)
|
by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
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that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
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4.
|
Pursuant to Section 5.12(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, White & Case LLP (London Office),
special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers opines as follows (capitalized terms used in this Clause 4 have the meanings ascribed to them in such opinion):
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(b)
|
the obligations expressed to be assumed by each of the Borrower, the Parent and the ECF Borrowers in the Credit Documents to which it is a party constitute its valid,
legally binding and enforceable obligations;
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(c)
|
there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Credit Documents;
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(d)
|
English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Credit Documents and will regard express submission by
the Borrower, the Parent and each of the ECF Borrowers to the jurisdiction contained in the Credit Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
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(e)
|
no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Credit Documents;
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(f)
|
neither the Construction Contracts nor the Refund Guarantees contain any restrictions which prevent them from being assigned to, or charged in favour of, the Collateral
Agent; and
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(g)
|
the Assignments of Contract are effective to create valid security interests in favour of the Collateral Agent.
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5.
|
Pursuant to Section 5.12(e) and subject to the assumptions, qualifications and definitions set forth in such opinion, White & Case LLP (Hamburg Office)
special German counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms used in this Clause 5 have the meanings ascribed to them in such opinion):
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The Declaration of Guarantee constitutes a valid and legally binding guarantee of the Federal Republic of Germany towards [•] subject
to the specific provisions set out in the Declaration of Guarantee and subject to the applicable General Terms and Conditions and Guidelines.
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6.
|
Pursuant to Section 5.12(f) and subject to the assumptions, qualifications and definitions set forth in such opinion, Graham Thompson & Co., special
Bahamas counsel to the Credit Parties opine as follows (capitalized terms used in this Clause 6 have the meanings ascribed to them in such opinion):
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(a)
|
Under the laws of The Bahamas the Borrower is the registered owner of record of sixty-four sixty-fourth shares, being the whole thereof of the Norwegian Jade and the
Norwegian Jade Mortgage constitutes the valid and legally binding act of the Borrower and the Norwegian Jade Mortgage is enforceable in accordance with its terms, and further, the Norwegian Jade Mortgage creates in favour of the Mortgagee a valid
and effective fourth priority legal mortgage over the Norwegian Jade and there are no other charges, mortgages or encumbrances on record with respect thereto. It should be noted that maritime liens as set out in Section 281 of The Merchant
Shipping Act of The Bahamas have priority over mortgages even if such liens are incurred after a mortgage has been registered.
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(b)
|
No further registration authorization, approval or consent or other official action in The Bahamas is necessary to render any of the Documents or the security
respectively created thereby valid, perfected and enforceable.
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(c)
|
All filing, registration and recording fees required under the laws of The Bahamas in connection with the Norwegian Jade Mortgage and other fees necessary to ensure the
validity, effectiveness and priority of any liens, charges and encumbrances created under the Norwegian Jade Mortgage have been paid.
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(d)
|
The courts of The Bahamas will recognize as a valid judgment and enforce any final, conclusive and enforceable judgment obtained against a mortgagor in a United Kingdom
court without re-examination of the merits of the case subject to registration of the judgment under the provisions of the Reciprocal Enforcements of Judgments Act of the Bahamas.
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(e)
|
The Norwegian Jade Mortgage constitutes the legal, valid and binding obligations of the Borrower and is enforceable in accordance with their respective terms.
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(f)
|
No consents, authorizations or other approvals are required from any governmental or other authority of The Bahamas for the execution, delivery or performance of any of
the Documents by any of the parties thereto or the consummation of the transactions contemplated therein.
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(g)
|
Neither the execution nor delivery of the Documents by the Borrower, nor the performance of its obligations under the Documents, will contravene any existing applicable
law or regulation of The Bahamas.
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(h)
|
The Borrower is not entitled or required under any existing applicable law or regulation of The Bahamas to make any withholding or deduction in respect of any tax or
otherwise from any payment which it is or may be required to make under the Documents (or any of them) and other than the fees paid in connection with the registration of the Norwegian Jade Mortgage no tax, impost, duty or registration fee is
payable on any of the Documents in The Bahamas save for registration fees on the Norwegian Jade Mortgage.
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|
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(i)
|
Other than the fees paid in connection with the registration of the Norwegian Jade Mortgage, no stamp or registration duty or similar taxes or charges are payable in
The Bahamas in respect of the Documents.
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(j)
|
Under the laws of The Bahamas, the Mortgagee will not be deemed to be resident, domiciled or carrying on any commercial activity in The Bahamas or subject to any tax of
The Bahamas as a result of its entry into the Documents or the performance of any of the transactions contemplated thereby. It is not necessary for the Mortgagee to be authorized or qualified to carry on business in The Bahamas or establish a place
of business in The Bahamas for the entry into or performance of the Documents.
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(k)
|
It is not necessary or advisable to take any further action in the future in order to preserve the security interests referred to above or the priority thereof in
connection with the Norwegian Jade Mortgage.
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7.
|
Pursuant to Section 5.12(g) and subject to the assumptions, qualifications and definitions set forth in such opinion, Holland & Knight, special Florida
Counsel to the Credit Parties as follows (capitalized terms used in this Clause 7 have the meanings ascribed to them in such opinion):
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To the extent that a security interest in the Collateral can be perfected by filing a UCC-1 financing statement in the State of Florida, perfection would occur by filing such financing statement with the
office described in Annex 2 to the opinion. Note that, if the debtor purporting to grant such security interest changes the location of its chief executive office to another location, the effectiveness of the Financing Statements will cease on the
expiration of four months after such change or, if earlier, when perfection would have otherwise ceased, unless such security interest becomes perfected under the law of such other location prior to such expiration.
SCHEDULE 6.10
MATERIAL LITIGATION
None.
SCHEDULE 8.03
EXISTING AGREEMENTS
None.
SCHEDULE 8.12
CAPITALIZATION
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Credit Party
|
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Owner
|
|
Type of
Shares
|
|
Number of
Shares
Owned
|
|
|
Percent of
Outstanding
Shares Owned
|
|
|
Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
Ordinary
|
|
|
2
|
|
|
|
100
|
%
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
Ordinary
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
Common
|
|
|
997,218,181
|
|
|
|
100
|
%
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
Ordinary
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
Ordinary
|
|
|
12,000
|
|
|
|
100
|
%
|
SCHEDULE 8.13
SUBSIDIARIES
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
Jurisdiction of
Organization
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
100
|
|
Isle of Man
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Maritime Investment, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
NCL America Holdings, LLC
|
|
Arrasas Limited
|
|
100
|
|
Delaware
|
|
NCL America LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
NCL (Bahamas) Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
NCL Cruises Ltd.
|
|
NCL Holding ASA
|
|
100
|
|
Bermuda
|
|
NCL Holding ASA
1
|
|
Arrasas Limited
|
|
100
|
|
Norway
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
100
|
|
Bermuda
|
|
Norwegian Dawn Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Epic, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Gem, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Pearl, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Spirit, Ltd.
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
Norwegian Star Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Isle of Man
|
|
Norwegian Sun Limited
|
|
NCL International, Ltd.
|
|
100
|
|
Bermuda
|
|
PAT Tours, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
Polynesian Adventure Tours, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Hawaii
|
|
1
|
This company is under voluntary liquidation.
|
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
Jurisdiction of
Organization
|
|
Pride of America Ship Holding, LLC
|
|
NCL America Holdings, LLC
|
|
100
|
|
Delaware
|
|
Pride of Hawaii, LLC
|
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NCL America Holdings, LLC
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100
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Delaware
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SCHEDULE 8.19
COLLATERAL VESSEL
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Vessel Name
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Vessel Owner
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Vessel IMO Number
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Flag and Registry
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Norwegian Jade
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Pride of Hawaii, LLC
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9304057
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Bahamas
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SCHEDULE 8.21
APPROVED CLASSIFICATION SOCIETIES
American Bureau of Shipping
Nippon Kaiji
Kyokai
Germanischer Lloyd
Lloyd’s Register of Shipping
Bureau
Veritas
Det Norske Veritas
SCHEDULE 9.03
REQUIRED INSURANCE
1. For the purpose of this Schedule 9.03, the following terms shall have the meanings ascribed to them as follows:
“
Compulsory Acquisition Compensation
” shall mean all moneys or other compensation whatsoever payable by reason of the
compulsory acquisition of the Collateral Vessel other than by requisition for hire;
“
Insurances
” shall mean
all policies and contracts of the insurance and entries of the Collateral Vessel in a protection and indemnity or war risks association which are effected in respect of the Collateral Vessel, its freight, disbursements, profits or otherwise and all
benefits, including all claims and returns of premiums thereunder and shall also include all Compulsory Acquisition Compensation;
“
Security Period
” shall mean that period from the Delivery Date until the date on which all Loans shall have been fully paid, satisfied and extinguished.
“
Total Loss
” shall mean any actual or constructive or arranged or agreed or compromised total loss or compulsory
acquisition of the Collateral Vessel (excluding any requisition for hire).
2. The Borrower shall insure the Collateral
Vessel, or procure that the Collateral Vessel is insured, in its name and keep the Collateral Vessel and procure that the Collateral Vessel is kept insured on an agreed value basis for an amount in Dollars approved by the Collateral Agent,
provided
that:
(a) the insured value of the Collateral Vessel shall at all times be equal to or greater
than its fair market value,
(b) the insured value of the Collateral Vessel shall be equal to or greater than
[*] of the then applicable Total Commitment, and
(c) the hull and machinery insured value for the Collateral
Vessel shall at all times be equal to no less than [*] of the total insured value of the Collateral Vessel and no more than [*] of the total insured value of the Collateral Vessel shall consist of hull interest and freight interest insurance
through internationally recognized independent first class insurance companies, underwriters, war risks and protection and indemnity
associations reasonably acceptable to the Collateral Agent in each instance on terms and conditions approved by the Collateral Agent (with such approval not to be unreasonably withheld) including as to deductibles but at least in respect of:
(1) marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London
insurance markets under English marine policies, or the Norwegian Plan or Collateral Agent-approved policies containing the ordinary conditions applicable to similar vessels;
(2) war risks including the Missing Vessel Clause terrorism, piracy and confiscation, and,
should Institute War and Strike Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(3) excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not
recoverable in consequence of the value at which the Collateral Vessel is assessed for the purpose of such claims exceeding the insured value;
(4) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the Collateral Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Collateral Vessel trades from time to time during the Security Period;
(5)
when and while the Collateral Vessel is laid-up, in lieu of hull insurance, normal port risks;
(6) such other risks as the
Collateral Agent may from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first
class and prudent owners and/or financiers in the international market in respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Borrower or the Collateral Agent)
such person shall if so required by the Collateral Agent execute a preferred assignment and/or transfer of its interest in such insurances in favour of the Collateral Agent in similar terms mutatis mutandis to the Assignment of Insurances,
provided
further that the Borrower has first obtained the consent of the First Mortgagee, the Second Mortgagee and the Third Mortgagee (as each such term is defined in the Vessel Mortgage) to such an assignment.
3. The Collateral Agent at the cost of the Borrower or the Parent shall take out, in each case, for an amount in Dollars approved by the
Collateral Agent but not being, collectively, less than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Collateral Agent may reasonably require, the Parent
and the Borrower having no interest or entitlement in respect of such policies; the Collateral Agent undertakes to use its reasonable endeavors to match the premium level that the Borrower or the Parent would have paid if they had arranged such
cover on such conditions (as demonstrated to the reasonable satisfaction of the Collateral Agent).
4. If the Collateral
Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Borrower shall comply
strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Collateral Vessel presently trades or may or will trade at any time during the existence of the Vessel Mortgage
and in particular before such trade is commenced and during the entire period during which such trade is carried on the Borrower shall:
(i) pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Collateral Vessel in the market;
(ii) make all such quarterly or other voyage declarations as may from time
to time be required by the Collateral Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Collateral Agent copies of such declarations;
(iii) submit the Collateral Vessel to such additional periodic, classification, structural or other surveys which may be
required by the Collateral Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Collateral Agent copies of reports made in respect of such surveys;
(iv) implement any recommendations contained in the reports issued following the surveys referred to in sub-clause
(iii) above within the time limit specified therein and provide evidence satisfactory to the Collateral Agent that the protection and indemnity insurers are satisfied that this has been done;
(v) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Borrower or the Collateral Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the
Collateral Agent on demand with such information or evidence as it may reasonably require of such compliance;
(vi) procure that the protection and indemnity insurances do not contain a clause excluding the Collateral Vessel from
trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Collateral Agent with evidence that this is so; and
(vii) strictly comply with any operational or structural regulations issued from time to time by any relevant authorities
under OPA so that at all times the Collateral Vessel falls within the provisions which limit strict liability under OPA for oil pollution.
5. The Borrower shall give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form
reasonably approved by the Collateral Agent.
6. The Borrower shall execute and deliver all such documents and do all such
things as may be necessary to confer upon the Collateral Agent legal title to the Insurances in respect of the Collateral Vessel and to procure that the interest of the Collateral Agent is at all times filed with all slips, cover notes, policies and
certificates of entry and to procure (a) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the
Collateral Vessel and (b) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Collateral Vessel.
7. At the Borrower’s expense the Borrower will cause such insurance broker and the P & I club or association
providing P & I insurance to agree to advise the Collateral Agent by telex or telecopier confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act
or omission on the part of the Borrower of which it has knowledge and which might invalidate or render unenforceable, in whole or in part, any insurance on the Collateral Vessel, and to provide
an opportunity of paying any such unpaid premium or call, such right being exercisable by the Collateral Agent on a vessel by vessel and not on a fleet basis. In addition, the Borrower or the
Parent shall promptly provide the Collateral Agent with any information which the Collateral Agent reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the adequacy of the
insurances effected or proposed to be effected in accordance with the provisions contained herein as of the date hereof or in connection with any renewal thereof, and the Borrower or the Parent shall upon demand indemnify the Collateral Agent in
respect of all reasonable fees and other expenses incurred by or for the account of the Collateral Agent in connection with any such report; provided the Collateral Agent shall be entitled to such indemnity only for one such report during any period
of twelve months.
8. The Borrower shall procure that each of the relevant brokers and associations furnish the Collateral
Agent with a letter of undertaking in such usual form as may be reasonably required by the Collateral Agent and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Collateral Vessel.
9. The Borrower shall punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the
Collateral Vessel and to produce all relevant receipts when so required by the Collateral Agent;
10. The Borrower shall renew
each of the Insurances on the Collateral Vessel at least [*] Business Days before the expiry thereof and give immediate notice to the Collateral Agent of such renewal and procure that the relevant brokers or associations shall promptly confirm in
writing to the Collateral Agent that such renewal is effected, it being understood by the Borrower that any failure to renew the Insurances on the Collateral Vessel at least [*] Business Days before the expiry thereof or to give or procure the
relevant notices of such renewal shall constitute an Event of Default.
11. The Borrower shall arrange for the execution of
such guarantees as may from time to time be required by any protection and indemnity and/or war risks association.
12. The
Borrower shall furnish to the Collateral Agent from time to time on request with full information about all Insurances maintained on the Collateral Vessel and the names of the offices, companies, underwriters, associations or clubs with which such
Insurances are placed.
13. The Borrower shall not agree to any variation in the terms of any of the Insurances on the
Collateral Vessel without the prior approval of the Collateral Agent (which approval shall not be unreasonably withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Borrower’s
consent, in which case the Borrower shall notify the Collateral Agent of such variation in a timely manner) nor do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable,
suspended, defeated or unenforceable and not to suffer or permit the Collateral Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers
concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the Insurances is imposed as aforesaid and in the absolute opinion of the Collateral
Agent its interest in the Insurances is thereby
materially adversely affected and/or the proceeds of the Insurances payable to the Collateral Agent would be adversely affected, the Borrower undertakes promptly to make such changes to the
Insurances, or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Borrower at that time, as the Collateral Agent shall reasonably require.
14. The Borrower shall not, without the prior written consent of the Collateral Agent, settle, compromise or abandon any claim in respect
of any of the Insurances on the Collateral Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss.
15. The Borrower shall promptly furnish the Collateral Agent with full information regarding any casualties or other accidents or damage
to the Collateral Vessel involving an amount in excess of [*].
16. The Borrower shall apply or ensure the appliance of all
such sums receivable in respect of the Insurances on the Collateral Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received.
17. In the event of the Borrower defaulting in insuring and keeping insured its Collateral Vessel as hereinbefore provided then the
Collateral Agent may (but shall not be bound to) insure the Collateral Vessel or enter the Collateral Vessel in such manner and to such extent as the Collateral Agent in its discretion thinks fit and in such case all the cost of effecting and
maintaining such Insurance together with interest thereon shall be paid on demand by the Borrower to the Collateral Agent.
SCHEDULE 10.01
EXISTING LIENS
None.
SCHEDULE 14.03A
CREDIT PARTY ADDRESSES
If to any Credit Party
:
7665
Corporation Center Drive
Miami, Florida 33126
United States of America
Attn: Chief Financial Officer and General Counsel
With copies to
:
Apollo Management, L.P.
9 West 57
th
Street
New
York, NY 10019
Attn: Steve Martinez
Tel. No.: (212) 515-3200
Fax No.:
(212) 515-3288
and
O’Melveny & Myers LLP
7 Times
Square
New York, NY 10036
Attn:
Brad Finkelstein
Tel. No.: (212) 326-2000
Fax No.: (212) 326-2600
SCHEDULE 14.03B
LENDER ADDRESSES
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INSTITUTIONS
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ADDRESSES
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
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Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
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DNB NOR BANK ASA
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Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
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HSBC BANK PLC
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8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
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KFW IPEX-BANK GMBH
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Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:
claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
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NORDEA BANK NORGE ASA
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Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
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EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
KfW IPEX-Bank GmbH,
as Facility Agent for the Lenders party
to the Credit Agreement
referred to below
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention:
[
]
Ladies and Gentlemen:
The undersigned, PRIDE OF HAWAII, LLC, a Delaware limited liability company (the “
Borrower
”), refers to the Credit
Agreement, dated as of [
], 2010 (as amended, restated, novated, modified and/or supplemented from time to time, the “
Credit Agreement
”, unless otherwise
defined herein, capitalized terms defined therein being used herein as therein defined), among NCL CORPORATION LTD., a Bermuda company (the “
Parent
”), the Borrower, the Lenders from time to time party thereto, you, as Facility Agent
and as Collateral Agent under the Security Documents, NORDEA BANK NORGE ASA, as Documentation Agent, COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent for such Lenders and the other parties thereto, and hereby gives you notice, irrevocably, pursuant
to Section 2.03 of the Credit Agreement, that the Borrower hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “
Proposed Borrowing
”) as
required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
(the “
Proposed Borrowing Date
”).
1
(ii) The portion of the Total Commitments to be utilized on the Proposed Borrowing Date (the “
Proposed Utilized Commitments
’) is €
.
(iii) The Loans to be made on the Proposed Borrowing Date shall consist of Tranche [A][B] Loans.
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1
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Shall be a Business Day at least three Business Days after the date hereof,
provided
that (in each case) any such notice shall be deemed to have
been given on a certain day only if given before 11:00 a.m. (Frankfurt time) on such day (unless such 11:00 a.m. deadline is waived in the case of the Initial Proposed Borrowing Date).
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Exhibit A
Page 2
(iv) The Parent and/or the Borrower and/or [Breakaway One][Breakaway
Two] [have] [have not] entered into Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes and/or the Yard on the Proposed Borrowing Date [and the Dollar Equivalent of the aggregate principal amount of the
Proposed Utilized Commitments is
[
]].
2
[Attached hereto as
Annex A
is evidence of such Earmarked Foreign Exchange Arrangements.]
(v) The initial Interest Period for the Proposed Borrowing is
[month(s)].
3
(vi) The proceeds of the Proposed Borrowing shall be deposited in the following accounts:
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Bank and Account No.
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Account Name
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Amount to be Disbursed
(indicate Dollars
or
Euros)
4
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[ ]
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[ ]
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[ ]
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(vii)
The Dollar Availability on the Proposed Borrowing Date is [
]. Attached hereto as
Annex B
are calculations
evidencing such Dollar Availability.
In connection with the Proposed Borrowing, the Borrower hereby certifies as follows:
(i) As of the Proposed Borrowing Date, all conditions and requirements under the [VESSEL 1] [VESSEL 2] Construction Contract
required to be satisfied on such Proposed Borrowing Date have been satisfied, other than those that are not materially adverse to the Lenders.
(ii) Both on the date hereof and as of the Proposed Borrowing Date, the representations and warranties made by each Credit Party in or pursuant to the Credit Documents are true and correct in all material
respects, on and as of such Proposed Borrowing Date as if made on and as of such Proposed Borrowing Date, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material
respects as of such earlier date.
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2
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Dollar Equivalent to be included if the Borrower has entered into Earmarked Foreign Exchange Arrangements.
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3
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The initial Interest Period for any Loan shall commence on the Proposed Borrowing Date of such Loan and each Interest Period occurring thereafter in
respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires and shall be for a three or six month period.
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4
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Euro disbursement only available if the Parent and/or the Borrower have not entered into Earmarked Foreign Exchange Arrangements.
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Exhibit A
Page 3
(iii) Both on the date hereof and as of the Proposed Borrowing Date after giving effect
to the Proposed Borrowing, no Default or Event of Default is or will be continuing.
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Very truly yours,
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PRIDE OF HAWAII, LLC
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By:
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Name:
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Title:
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Annex A
Evidence of Earmarked Foreign Exchange Arrangements
[See attached]
Annex B
Dollar Availability Calculation
[See attached.]
EXHIBIT B
From BankAssure Insurance Services
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.
[*]
EXHIBIT C
To:
KFW
IPEX-Bank GmbH, as Collateral Agent,
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Claudia Wenzel/ Christian Schweiger
Copy to:
Deutsche Schiffsbank AG
DnB Nor Bank ASA
HSBC Bank plc
Nordea Bank Norge ASA
From:
Aon Risk Services Inc., of
Florida
Date: [•], 20[•]
Dear Sirs,
1. This Certificate is delivered
pursuant to Section 5.07 of the Credit Agreement dated as of [•], 2010 and made among Pride of Hawaii, LLC, as Borrower, NCL Corporation Ltd. (“
NCLC
”) as Parent, the Lender Creditors from time to time party thereto and KFW
IPEX-Bank GmbH, as Facility Agent and Collateral Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”).
Capitalized terms used and not otherwise defined in this Certificate shall have the meanings assigned to such terms in the Credit Agreement.
2. We hereby certify to you that, with respect to the Vessel, on and as of the date of this Certificate:
(i) the insurance cover referred to below is placed and maintained with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily
insured against by similarly situated insureds for the protection of the Facility Agent, the Collateral Agent and/or the Lender Creditors as mortgagees of the Vessel; and
(ii) the insurance cover referred to in this Certificate conforms with the Required Insurances including (without limitation) hull and machinery, war risks, loss of hire (if applicable) and protection and
indemnity insurance set forth in Schedule 9.03 of the Credit Agreement.
3. The insurance cover referred to in paragraph 2(i) above comprises:
“NORWEGIAN JADE” ex PRIDE OF HAWAII” - Protection & Indemnity Coverage, Certificate No 259428, February 20, 2010-11, issued by The West of England Ship Owners Mutual Insurance Association
Yours truly,
For and on behalf of
Aon Risk Services Inc., of Florida
Aon Risk
Solutions
| Marine Practice Group
1001 Brickell Bay Drive | Suite 1100 | Miami, FL 33131
t
+1.305.372.9950 |
f
+1.305.372.8599 | toll free: +1.800.743.3486
aon.com
EXHIBIT D
FORM OF SECRETARY’S CERTIFICATE
OF
CREDIT PARTIES
[ ], 2010
The undersigned Secretary of each of the entities listed on
Schedule I
hereto (each, a “
Credit Party
”) does hereby certify the following to KfW IPEX-Bank GmbH (“
KfW
IPEX
”), as Facility Agent in connection with the Credit Agreement, dated as of [ ], 2010, among NCL Corporation Ltd., Pride of Hawaii, LLC, as Borrower, the Lenders from
time to time party thereto, KfW IPEX, as Facility Agent and Collateral Agent under the Security Documents, Nordea Bank Norge ASA, as Documentation Agent and Commerzbank Aktiengesellschaft, as Hermes Agent (as the same may be amended, restated, or
otherwise modified from time to time, the “
Credit Agreement
”). All capitalized terms used in this certificate shall have the meanings assigned to them in the Credit Agreement, unless otherwise defined in this certificate.
1. Attached hereto as
Exhibit A
is a true and complete copy of minutes or resolutions duly adopted by the board of
directors (or equivalent) of each Credit Party authorizing, among other things, the execution, delivery and performance of the Credit Documents to which such Credit Party is a party, and such minutes or resolutions (or equivalent) have not since
their adoption been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and are in full force and effect on the date hereof.
2. Attached hereto as
Exhibit B
is a true, correct and complete copy of the certificate of incorporation or certificate of formation and by-laws or equivalent organizational documents of each
Credit Party, each of which is as of the date hereof in full force and effect.
3. The persons whose names appear on
Exhibit C
hereto are, as of the date hereof, duly elected or appointed, as applicable, qualified, and acting officers or directors of each Credit Party, holding the offices or directorships set forth beside their names, and are authorized to
execute and deliver the Credit Documents on behalf of such Credit Party, and the signature appearing next to each name is the genuine signature of such officer or director.
4. On the date hereof, the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects with the same effect as though
such representations and warranties had been made on the date hereof, both before and after giving effect to the incurrence of Loans on the date hereof and the application of the proceeds thereof, unless stated to relate to a specific earlier date,
in which case such representations and warranties were true and correct in all material respects as of such earlier date.
5.
On the date hereof, no Default or Event of Default has occurred and is continuing or would result from the Borrowing to occur on the date hereof or from the application of the proceeds thereof.
6. There is no proceeding for the dissolution or liquidation of any Credit Party or threatening any Credit Party’s existence.
IN WITNESS WHEREOF, each of the Credit Parties has caused this Secretary’s Certificate
to be executed and delivered by its duly authorized representative as of the date first set forth above.
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NCL CORPORATION LTD.
NCL AMERICA HOLDINGS, LLC
PRIDE OF HAWAII, LLC
BREAKAWAY ONE, LTD.
BREAKAWAY TWO,
LTD.
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By:
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Name:
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Daniel S. Farkas
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Title:
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Secretary
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I, Kevin M. Sheehan, President and Chief Executive Officer of NCL Corporation Ltd., NCL
America Holdings, LLC, Pride of Hawaii, LLC, Breakaway One, Ltd. and Breakaway Two, Ltd. hereby certify that Daniel S. Farkas is the duly elected or appointed, as applicable, and qualified Secretary of NCL Corporation Ltd., NCL America Holdings,
LLC, Pride of Hawaii, LLC, Breakaway One, Ltd. and Breakaway Two, Ltd. and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first set forth above.
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Name:
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Kevin M. Sheehan
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Title:
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President and Chief Executive Officer
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Schedule I
Credit Parties
NCL
Corporation Ltd.
NCL America Holdings, LLC
Pride of Hawaii, LLC
Breakaway One, Ltd.
Breakaway Two, Ltd.
Exhibit A
Resolutions
Exhibit B
Organizational Documents
Exhibit C
Incumbency
NCL
Corporation Ltd.
NCL America Holdings, LLC
Pride of Hawaii, LLC
Breakaway One, Ltd.
Breakaway Two, Ltd.
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Kevin M. Sheehan
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President
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Chief Executive Officer
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Daniel S. Farkas
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Senior Vice President
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General Counsel
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Secretary
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EXHIBIT E
F
ORM
O
F
T
RANSFER
C
ERTIFICATE
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To:
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[ ] as Facility Agent and
[ ] as Hermes Agent
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From:
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[
The Existing Lender
] (the “
Existing Lender
”) and [
The New Lender
] (the “
New Lender
”)
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Dated:
Pride of Hawaii, LLC
– Credit Agreement
Total Commitment - €126,075,000
dated [ ]
( the “Credit Agreement”)
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1.
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We refer to the Credit Agreement and to the ECF Intercreditor Agreements. This agreement (the “
Agreement
”) shall take effect as a Transfer Certificate
for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
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2.
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We refer to Section 13.06 (
Procedure and Conditions for Transfer
) of the Credit Agreement:
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(a)
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The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule attached hereto in accordance with Section 13.06 (
Procedure and Conditions for Transfer
).
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(b)
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The proposed date of transfer is [ ].
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(c)
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The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule attached hereto.
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3.
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On the date of the transfer the New Lender becomes:
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(a)
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Party to the relevant Credit Documents (other than the ECF Intercreditor Agreements and the Security Trust Deed) as a Lender; and
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(b)
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Party to each ECF Intercreditor Agreement as a Jade Lender; and
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(c)
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Party to the Security Trust Deed as a Secured Creditor.
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4.
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The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
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EXHIBIT E
2
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5.
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We refer to Clause 9.2 (
Change to the Lenders
) of each ECF Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) of the Security Trust Deed
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(a)
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In consideration of the New Lender being accepted as a Jade Lender for the purposes of each ECF Intercreditor Agreement (and as defined therein), the New Lender
confirms that, as from the date of transfer, it intends to be party to each ECF Intercreditor Agreement as a Jade Lender, and undertakes to perform all the obligations expressed in each ECF Intercreditor Agreement to be assumed by a Jade Lender and
agrees that it shall be bound by all the provisions of each ECF Intercreditor Agreement, as if it had been an original party to such ECF Intercreditor Agreement.
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(b)
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In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the transfer, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
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6.
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We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the transfer becomes effective in accordance with the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
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7.
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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.
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8.
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This Agreement takes effect as a deed.
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9.
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This Agreement has been entered into on the date stated at the beginning of this Agreement.
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10.
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This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with English law.
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Note:
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The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It
is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
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EXHIBIT E
3
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Notice Office address, fax number and
attention details for notices and account details for payments
]
EXHIBIT E
4
SIGNATORIES
[Existing Lender]
Executed as a deed by
[name of Existing Lender]
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender]Executed as a deed by
[name of
New Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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EXHIBIT E
5
This Agreement is accepted as a Transfer Certificate for the purposes of the Credit Agreement by the
Facility Agent and by the Hermes Agent, and the date of the transfer is confirmed as [ ].
Signature of this Agreement by the Facility Agent
constitutes confirmation by the Facility Agent of receipt of notice of the transfer referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
[Facility Agent]
Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[Hermes Agent]
Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[NCL Corporation
Ltd.]
1
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1
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To be signed by the Company only if the transfer is pursuant to section 13.01(a)(ii) of the Credit Agreement.
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EXHIBIT E
6
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[Signed as a deed by [
NCL Corporation Ltd.
], a company incorporated in Bermuda, by [
full name(s) of person(s) signing
]
,
being [a] person[s]
who, in accordance with the laws of that territory, [is][are] acting under the authority of the company.
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Signature(s)
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Authorised [signatory] [signatories]]
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EXHIBIT F
DATED [ ] NOVEMBER 2010
PRIDE OF HAWAII, LLC
(as assignor)
to
KFW IPEX-BANK GMBH,
(as assignee)
FORM OF FOURTH
CHARTER AND EARNINGS ASSIGNMENT
m.v. “NORWEGIAN JADE”
TABLE OF CONTENTS
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Page
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1
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Definitions and Construction
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2
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2
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Covenant to Pay and Perform
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3
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3
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Assignment and Negative Pledge
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3
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4
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Notices of Assignment
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4
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5
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Application of Earnings
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4
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6
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Operation and Maintenance
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4
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7
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Power of Attorney
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4
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8
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Assignor's Liability Unaffected by Assignment
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5
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9
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Continuing Security
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5
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10
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Further Assurance
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5
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11
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Enforcement Expenses
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5
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12
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Waivers, Remedies Cumulative
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5
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13
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Assignment
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6
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14
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Discharge of Security
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6
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15
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Notices
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6
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16
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Governing Law and Jurisdiction
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7
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Schedule 1
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9
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Schedule 2
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13
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Schedule 3
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21
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Schedule 4
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26
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Schedule 5 Notice of Assignment
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28
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Acknowledgement
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29
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(i)
DEED OF ASSIGNMENT
Dated 2010
BY:
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(1)
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PRIDE OF HAWAII, LLC
a Delaware corporation and having its registered office at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United
States of America (the
“Assignor”
);
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IN FAVOUR OF:
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(2)
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KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries (as defined below) pursuant to the Security Trust Deed (the “
Assignee
”).
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WHEREAS:
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(A)
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The Assignor is the absolute owner of all of the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JADE” (the “
Vessel
”) registered in
the name of the Assignor under the laws and flag of the Bahamas at the port of Nassau with Official Number 9000236.
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(B)
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Pursuant to a first assignment of charter and earnings dated 10 February 2008 (the “
First Assignment
”) the Assignor assigned the benefit of the
Bareboat Charter and the Earnings, to the extent the Earnings were not assigned by way of a first assignment of earnings dated 18 October 2004 between the Assignor and the First Assignee (as defined below) as collateral to a first priority
mortgage over the Vessel upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First Assignee
”).
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(C)
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Pursuant to a second assignment of charter and earnings dated 2 April 2009 (the “
Second Assignment
”) the Assignor assigned the benefit of the
Bareboat Charter and Earnings as collateral to a second priority mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself
and the parties set out in Schedule 2 (the “
Second Assignee
”).
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(E)
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Pursuant to a third assignment of charter and earnings dated 2 April 2009 (the “
Third Assignment
”) the Assignor assigned the benefit of the
Bareboat Charter and Earnings as collateral to a third priority mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself
and the parties set out in Schedule 3 (the “
Third Assignee
”).
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(F)
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Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries under or pursuant to the Junior Finance Documents, the Assignor has
executed and delivered in favour of the Assignee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to assign the benefit of the Bareboat Charter and Earnings to the Assignee on trust for itself and the
Beneficiaries as security for the repayment of the Secured Obligations.
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(G)
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By a deed of co-ordination dated as of the date hereof (the
“Fourth Priority Security Co-ordination Deed”
) made between (among others) (1) the
First Assignee (2) the Second Assignee, (3) the Third Assignee and (4) the Assignee the parties have agreed (among other things) as to how the provisions of Clause 5 shall operate. Further by the Fourth Priority Security Co-ordination
Deed it has been agreed that the benefit of this Deed shall be held by the Assignee on trust for itself and the Secured Creditors, including the Secured Creditors set out in Schedule 4 and its and their respective successors, assignees and
transferees (together the
“Beneficiaries”
).
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NOW THIS DEED WITNESSES:
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1
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Definitions and Construction
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The headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed. In this Deed the following terms shall have the
meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed.
“Bareboat Charter”
means the bareboat charterparty dated 10 February 2008 and made between the Assignor as owner and
NCL (Bahamas) Ltd. as charterer (the “
Bareboat Charterer
”);
“
Credit Agreement
” means that
certain €126,075,000 credit agreement, dated November [•], 2010 among NCL Corporation Ltd., as parent, (the “
Parent
”), the Assignor, as borrower, the lenders from time to time party thereto (the
“Lenders
”), the Assignee, as facility agent and as collateral agent under the Security Documents, Nordea Bank Norge ASA, as documentation agent, Commerzbank AG, as Hermes agent, and the other parties thereto, as amended, novated,
and/or restated or otherwise modified from time to time
“
Compulsory Acquisition
” means requisition for title
or other compulsory acquisition of the Vessel including its capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons
acting or purporting to act on behalf of any such government or governmental authority or agency;
“Earnings”
means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire and passage monies, proceeds of requisition (other than proceeds of a Compulsory Acquisition), rebates and commissions to or for the account of the
Assignor and/or the Bareboat Charterer, all earnings deriving from the Bareboat Charter, time charters, contracts of affreightment, pooling agreements, joint ventures, compensation, remuneration for salvage and towage services, damages howsoever
arising and detention monies, damages for breach of any charterparty or other contract for the employment of the Vessel including, but without limitation, the Bareboat Charter, any amounts payable in consideration of the termination or variation of
any charterparty or other such contract, any reduction in the Hermes Premium repaid by Hermes to the Assignor and any other earnings whatsoever due or to become due to the Assignor and/or the Bareboat Charterer;
“
Event of Default
” has the meaning ascribed to it in the Credit Agreement;
“
Junior Finance Documents
” means the Credit Documents as defined in the Credit Agreement;
2
“Lender Creditors
” means the Lenders, the Assignee and each other Agent
under the Credit Agreement.
“
Liens
” has the meaning ascribed to it in the Credit Agreement;
“Other Creditors
” means any Lender or any affiliate thereof and their successors, transferees and assigns if any (even if
such Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Assignor enters into any Interest
Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Secured Creditors
” means
collectively (i) the Lender Creditors and (ii) the Other Creditors;
“
Secured Obligations
” has the
meaning ascribed to it in the Credit Agreement;
“
Security Documents
” has the meaning ascribed to it in the
Credit Agreement;
“Security Period”
means the period beginning on the date of this Deed and ending on the
date when the whole of the Secured Obligations have been repaid in full and the Assignor has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Junior Finance Documents; and
“Security Trust Deed
” means the Security Trust Deed executed on or about the date hereof by, inter alia, the Assignor,
the Guarantor, the Assignee, the Original Secured Creditors (as defined therein) and the Original Term Hedging Creditors (as defined therein).
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2
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Covenant to Pay and Perform
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The Assignor covenants with the Assignee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or
pursuant to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
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3
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Assignment and Negative Pledge
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3.1
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Assignment
In consideration of:
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3.1.1
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the Beneficiaries consenting to the continued chartering of the Vessel to the Bareboat Charterer pursuant to the Bareboat Charter;
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3.1.2
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the Beneficiaries making certain facilities available to the Assignor pursuant to the Credit Agreement;
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3.1.3
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payment by the Assignee to the Assignor of ten Dollars (USD10); and
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3.1.4
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other good and valuable consideration from the Beneficiaries to the Assignor
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3
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(the adequacy and receipt whereof is hereby acknowledged by the Assignor) and as security for payment of the Secured Obligations, the Assignor with full title guarantee hereby assigns to, and
grants a security interest in, and agrees to assign to, and grant a security interest in, the Assignee absolutely all its right and title to and interest in the Bareboat Charter and the Earnings,
TO HOLD
the same absolutely unto the Assignee,
subject to the First Assignment, the Second Assignment and the Third Assignment.
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3.2
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Negative pledge
The Assignor undertakes that, except with the prior written consent of the Assignee, it will not at any time during the currency of this Deed
create or permit to subsist any Lien save for the First Assignment, the Second Assignment and the Third Assignment (and except for Permitted Liens) on all or any part of the Assignor’s right, title and interest in and to the Bareboat Charter
and the Earnings of the Vessel.
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The Assignor undertakes immediately to give notice substantially in the form of Schedule 5 to the Bareboat Charterer and the Assignor
undertakes to procure that the Bareboat Charterer acknowledges and consents to such assignment by signing an endorsement of the notice in the form set out in Schedule 5.
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5
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Application of Earnings
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All Earnings received by the Assignee pursuant to the assignment in this Deed shall be applied in accordance with clause 3.4 of the Fourth
Priority Security Co-ordination Deed and section 4.05 of the Credit Agreement
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6
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Operation and Maintenance
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The Assignor undertakes to the Assignee that it will comply with all of its obligations with respect to the operation and maintenance of
the Vessel set out in the Junior Finance Documents.
The
Assignor hereby irrevocably appoints and constitutes the Assignee as its true and lawful attorney with full power (in the name of the Assignor or otherwise) to demand, compound and give acquittance for any monies and claims for monies due or to
become due, to endorse any cheque or other instrument or order in connection therewith and to file any claims or take any action or institute any proceedings which may seem to the Assignee to be necessary or advisable and otherwise to do any and all
things which the Assignor itself could do in relation to the property hereby assigned provided that the power of attorney created by this Clause 7 shall take effect only from and after the occurrence of an Event of Default, subject to the provisions
of the Fourth Priority Security Co-ordination Deed, or, in the case of the execution of notices in the form of Schedule 5, an Event of Default that is continuing. The exercise of such power by the Assignee shall not put any person dealing with the
Assignee on any enquiry and the exercise by the Assignee of such power shall be conclusive evidence of its right to exercise it. The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this
Deed shall do in its capacity as such, to the extent permissible hereunder.
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8
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Assignor’s Liability Unaffected by Assignment
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It is agreed that notwithstanding the assignments contained herein:
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8.1
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the Assignee shall not be obliged to make any enquiries as to the nature or sufficiency of any payment received by the Assignee or its order under those assignments or
to make any claim or take any other action to collect any monies or to enforce any rights and benefits assigned to the Assignee or to which the Assignee may at any time be entitled thereunder; and
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8.2
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the Assignor shall remain liable to perform all the obligations assumed by it in relation to any charter or contract of affreightment or employment of the Vessel and
the Assignee shall not be under any obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Assignor to perform its obligations in respect thereof.
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This
Deed and the assignments herein shall be:
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9.1
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a continuing security remaining in full force and effect until payment in full of each and every part of the Secured Obligations; and
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9.2
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in addition to and not in substitution for or in derogation of any other security held by the Assignee, from time to time in respect of the Secured Obligations.
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The
Assignor will, from time to time on being required to do so by the Assignee, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Assignee as the Assignee may reasonably
consider necessary for giving full effect to any of the Security Documents including this Deed or securing to the Assignee the full benefit of the rights, powers and remedies conferred upon the Assignee in any such Security Document including this
Deed.
The
Assignor shall reimburse the Assignee on demand for the charges and expenses (including the fees and expenses of legal advisors and value added tax or any similar tax thereon) incurred by it in connection with the enforcement of, or the preservation
of, any rights under this Deed.
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12
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Waivers, Remedies Cumulative
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No failure to
exercise and no delay in exercising on the part of the Assignee any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. No waiver by the Assignee shall be effective unless it is in writing.
5
The
rights and remedies of the Assignee provided herein are cumulative and not exclusive of any rights or remedies provided by law.
If any
provision of this Deed or any of the other Security Documents is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
Time is
of the essence in respect of all of the obligations of the Assignor under this Deed provided however that the Assignee shall not be entitled to enforce its rights under the assignments contained in this Deed otherwise than in circumstances which
constitute an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed.
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13.1
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Benefit of agreement
This Deed shall be binding upon the Assignor and its successors and shall inure to the benefit of the Assignee and its successors,
transferees and assigns.
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13.2
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Disclosure of information
Any of the Beneficiaries may disclose to a potential transferee or assignee or to any other person who may otherwise propose to enter
into contractual relations with any of them in relation to this Deed such information about the Assignor as such Beneficiary shall consider appropriate subject always to the provisions of section 14.14 of the Credit Agreement where, for the purpose
of this Deed, references to “
Lender
” shall be read and construed as “
Beneficiary
”.
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13.3
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Contracts (Rights of Third Parties) Act 1999 (the “Act”)
A person who is not a party to this Deed has no right under the Act to enforce any term of
this Deed but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
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Following the repayment or payment to the Assignee of all the Secured Obligations the Assignee will at the Assignor’s request and
expense reassign to the Assignor the property assigned to the Assignee by this Deed without recourse to any representation or warranty by or from the Assignee.
All demands and
notices made or given hereunder shall be made or given in accordance with section 14.03 of the Credit Agreement.
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16
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Governing Law and Jurisdiction
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16.1
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This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
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16.2
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The courts of England have exclusive jurisdiction to settle any dispute:
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16.2.1
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arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
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16.2.2
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relating to any non-contractual obligations arising from or in connection with this Deed,
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(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 16.2 is for the benefit of the Assignee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed
(including a dispute regarding the existence, validity or termination of this Deed) (a
“Dispute”
). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and
accordingly no party will argue to the contrary.
This Clause 16.2 is for the benefit of the Assignee only. As a result, such
party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
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16.3
|
The Assignor may not, without the Assignee’s prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment
ceases to be effective, the Assignor shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Assignee to act as the Assignor’s process agent with unconditional authority to receive and
acknowledge service on behalf of the Assignor of all process or other documents connected with proceedings in the English courts which relate to this Deed.
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16.4
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For the purpose of securing its obligations under Clause 16.2, the Assignor irrevocably agrees that, if it for any reason fails to appoint a process agent within the
period specified in Clause 16.2, the Assignee may appoint any person (including a company controlled by or associated with the Assignee, the Agent or any Lender) to act as the Assignor’s process agent in England with the unconditional authority
described in Clause 16.2.
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16.5
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No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Assignor of the service of any process or to
forward any process to the Assignor) shall invalidate any proceedings or judgment.
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7
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16.6
|
The Assignor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings
with respect to this Deed.
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16.7
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A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Assignor and may be enforced without
review in any other jurisdiction.
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16.8
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Nothing in this Clause shall exclude or limit any right which the Assignee may have (whether under the laws of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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16.9
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
IN WITNESS
whereof this Deed has been executed and delivered by the parties hereto as a deed on the day first written
above.
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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for and on behalf of
|
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)
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PRIDE OF HAWAII, LLC
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)
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by
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)
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its duly appointed attorney-in-fact,
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)
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who in accordance with the laws of that territory,
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)
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is acting under the authority of the company
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)
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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for and on behalf of
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)
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KFW IPEX-BANK GMBH
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)
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by
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)
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who in accordance with the laws of that territory,
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)
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is acting under the authority of the company
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)
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8
Schedule 1
Senior Security Documents
First Priority Mortgage and Collateral Deed of Covenants each
dated 10 February 2008
First Assignment of Insurances dated 19 April 2006
First Charter and/or Earnings Assignments dated 18 October 2004 and 10 February 2008
Deeds of Assignment and Subordination dated 10 February 2008 and 16 June 2008
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
9
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
10
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email:
josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
11
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
12
Schedule 2
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Second Priority Mortgage and Collateral Deed of Covenants dated 2 April 2009
Second Assignment of Insurances dated 2 April 2009
Second Charter and Earnings Assignment
dated 2 April 2009
Second Assignment and Subordination dated 2 April 2009
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
13
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
14
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email:
josef.schmid@kfw.de/claudia.wenzel@kfw.de
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
15
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email:
josef.schmid@kfw.de/claudia.wenzel@kfw.de
16
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email: lam.curacao@dvbbank.com/james.neira@dvbbank.com
Part III
USD334,050,000 Secured Loan Agreement dated 20 April 2004
as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
As trustee for:
HSBC
BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
17
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
18
K
FW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email:
josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
Fax: +65 6536 6449/6532 5347
Attn: Ms Lee King Lan/Ms Elaine Lam
Email:
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
19
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence
Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
20
Schedule 3
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Third Priority Mortgage and Collateral Deed of Covenants dated 2 April 2009
Third Assignment of Insurances dated 2 April 2009
Third Charter and Earnings Assignment
dated 2 April 2009
Third Assignment and Subordination dated 2 April 2009
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended
and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
As trustee
for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
(as security
agent and agent)
21
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/ Mrs Anne Randewig
Email: shipfinance@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49
69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
22
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email:
shipping@nordlb.de
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax: +47 22 484278
Attn: Mr Arne Berglund
Email:
arne.berglund@nordea.com
BANK OF SCOTLAND PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax: +44 131 659 1194
Attn: Douglas Newton/Russell Parker
Email: douglas_newton@bankofscotland.co.uk
23
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
Fax: +49 40
3692 3696/+49 89 378 334 2832
Attn: Mr Peter-Alexander Wunner/ Mr Michael McCarthy
Email: peter-alexander.wunner@unicreditgroup.de/
michael.mccarthy@unicreditgroup.de
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
Fax: +49 421 3609 329
Attn: Dr Matthias Fischer
Email: matthias.fischer@schiffsbank.com
FOKUS BANK
(being the Norwegian branch
of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
Fax: +47 85
407990
Attn: Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
Email: oivind.haraldsen@fokus.no/
tore.braein@fokus.no
24
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 613741
Attn: Mr Carsten Dreyer
Email:
carsten.dreyer@hsh-nordbank.com
Fax: +1 212 407 6008
Attn: Ms Frauke Hay
Email: frauke.hay@hsh-nordbank.com
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40
Stockholm
Sweden
Fax:
+44 20 7236 5144
Attn: Mr Egil Aarrestad/Mr Malcolm Stonehouse
Email: egil.aarrestad@seb.co.uk/
malcolm.stonehouse@seb.co.uk
25
Schedule 4
EUR126,075,000 Credit Agreement dated November [_] 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49
69 7431 2944
Attn: Ship Finance, X2a4
Claudia Wenzel
Email:
Claudia.wenzel@kfw.de
As Trustee for
:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax: +47 22 486668
Attn: Mr Arne Berglund
Email: arne.berglund@nordea.com
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
Fax: +49 40 3769 9649
Attn: Mr Marcus Weber Ms Anne Randewig
|
Email:
|
marcus.weber@commerzbank.com
|
anne.randewig@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Ms Amra
Koluder
Mr Solveig N. Knoff
|
Email:
|
amra.koluder@dnbnor.no
|
solveig.knoff@dnbnor.no
26
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49
69 7431 4466/ 2944
Attn: Mr Stephan Pueschel
Mr Christian Schweiger
Email: stephan.pueschel@kfw.de
christian.schweiger@kfw.de
HSBC BANK PLC
8 Canada Square
London E14 5HQ
Fax:
+44 207 992 4428
Attn: Alan P. Marshall
Email: alan.p.marshall@hsbcib.com
And each other Secured Creditor under and as defined in the
Credit Agreement.
27
Schedule 5
Notice of Assignment
Dear Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
We hereby give you notice that by a fourth charter and earnings assignment dated November [__], 2010 (the
“Assignment”
) we assigned to
KfW IPEX-Bank GmbH
of Palmengartenstrasse
5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee for the Beneficiaries (as defined in the Assignment) (the
“Assignee”
) all our right and title to and interest in (i) the
bareboat charter dated 10 February 2008 made between you and us in respect of the Vessel (the
“Bareboat Charter”
) and (ii) all hire, freights and other earnings of the Vessel.
You are authorised to continue to pay to us the hire due under the Bareboat Charter and any other sums due to us under the Bareboat Charter unless you
receive a notice from the Assignee to the contrary pursuant to an Event of Default under the said assignment.
Will you please note that these
instructions are not to be revoked or varied without the prior written consent of the Assignee.
Will you please acknowledge receipt of this
letter by signing and returning one (1) copy to us and one (1) copy to the Assignee with the endorsement below duly completed.
Dated 2010
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|
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|
PRIDE OF HAWAII, LLC
|
|
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|
By:
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|
Title:
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28
Acknowledgement
Corporation Trust Center
1209 Orange Street
Wilmington
Delaware 19801
United States of America
Dear Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
We, the undersigned, the bareboat charterer of the Vessel under a charterparty dated 10 February 2008, hereby acknowledge receipt of the above
notice of fourth charter and earnings assignment and in consideration of the payment by you of ten United States Dollars (USD10) and other good and valuable consideration, the receipt and sufficiency of which we hereby acknowledge, we hereby
(1) confirm that other than for a first assignment, second assignment and third assignment we have not previously received notice of any such assignment (2) consent to the assignment referred to in the above notice and (3) agree that
we will make payment of all such monies free of any set-off, counterclaim or other deduction to the account of the Assignee referred to in the above notice if so directed by the Assignee or to such other account as the Assignee may from time to time
direct.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the fourth charter and earnings
assignment referred to in the above notice.
Dated
2010
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|
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|
NCL (BAHAMAS) LTD.
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|
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By:
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|
Title:
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|
29
EXHIBIT G
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated
2010
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(1)
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PRIDE OF HAWAII, LLC
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(as assignor)
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(2)
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KFW IPEX-BANK GMBH
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(as assignee)
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FOURTH INSURANCE ASSIGNMENT
m.v. “NORWEGIAN JADE”
TABLE OF CONTENTS
|
|
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Page
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|
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|
|
1
|
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Definitions and Construction
|
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|
2
|
|
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|
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|
2
|
|
Covenant to Pay and Perform
|
|
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3
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3
|
|
Assignment and Negative Pledge
|
|
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3
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|
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4
|
|
Notice of Assignment of Insurances
|
|
|
4
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|
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5
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|
Application of Proceeds of Insurances
|
|
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4
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6
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|
Power of Attorney
|
|
|
4
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7
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|
Assignor’s Liability Unaffected by Assignment
|
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4
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8
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Continuing Security
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5
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9
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Further Assurance
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5
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10
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Enforcement Expenses
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5
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11
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Waivers, Remedies Cumulative
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5
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12
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Assignment
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6
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13
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Discharge of Security
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6
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14
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Notices
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6
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15
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Governing Law and Jurisdiction
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6
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|
Schedule 1
|
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9
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Schedule 2
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13
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Schedule 3
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21
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Schedule 4
|
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26
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Schedule 5
|
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28
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Schedule 6
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29
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Schedule 7
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34
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(i)
DEED
Dated 2010
BY:
|
(1)
|
PRIDE OF HAWAII, LLC
of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America (the
“
Assignor
”);
|
IN FAVOUR OF:
|
(2)
|
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries (as defined below) pursuant to the Security Trust Deed (the “
Assignee
”).
|
WHEREAS:
|
(A)
|
The Assignor is the absolute owner of all of the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JADE” (the “
Vessel
”) registered in
the name of the Assignor under the laws and flag of the Bahamas at the port of Nassau with Official Number 9000236.
|
|
(B)
|
Pursuant to a first insurance assignment dated 19 April 2006 (the “
First Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a first priority Bahamian statutory mortgage over the Vessel dated 10 February 2008 upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in
Schedule 1 (the “
First Assignee
”).
|
|
(C)
|
Pursuant to a second insurance assignment dated 2 April 2009 (the “
Second Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a second priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021Oslo, Norway, as trustee for itself and the parties set
out in Schedule 2 (the “
Second Assignee
”).
|
|
(D)
|
Pursuant to a third insurance assignment dated 2 April 2009 (the “
Third Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a third priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the parties set
out in Schedule 3 (the “
Third Assignee
”).
|
|
(E)
|
Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries under or pursuant to the Junior Finance Documents, the Assignor has
executed and delivered in favour of the Assignee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to assign the benefit of the Insurances to the Assignee on trust for itself and the Beneficiaries as security for
the repayment of the Secured Obligations.
|
|
(F)
|
By a deed of co-ordination dated as of the date hereof (the “
Fourth Priority Security Co-ordination Deed
”) made between (among others)
(1) the First Assignee (2) the Second Assignee, (3) the Third Assignee and (4) the Assignee, the parties have agreed (among other things) as to how the provisions of Clause 5 shall operate. Further by the
|
|
|
Fourth Priority Security Co-ordination Deed it has been agreed that the benefit of this Deed shall be held by the Assignee on trust for itself and the Secured Creditors, including the Secured
Creditors set out in Schedule 4 and its and their respective successors, assignees and transferees (together the “
Beneficiaries
”).
|
NOW THIS DEED WITNESSES:
|
1
|
Definitions and Construction
|
The headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed. In this Deed the following terms shall have the
meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed.
“
Credit Agreement
” means that certain €126,075,000 credit agreement, effective November 18, 2010 among NCL
Corporation Ltd., as parent, (the “
Parent
”), the Assignor, as borrower, the lenders from time to time party thereto (the “
Lenders
”), the Assignee, as facility agent and as collateral agent under the Security
Documents, Nordea Bank Norge ASA, as documentation agent, Commerzbank AG, as Hermes agent, and the other parties thereto, as amended, novated, and/or restated or otherwise modified from time to time;
“
Compulsory Acquisition
” means requisition for title or other compulsory acquisition of the Vessel including its capture,
seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or
governmental authority or agency;
“
Event of Default
” has the meaning ascribed to it in the Credit Agreement;
“
Insurances
” means all policies and contracts of insurance of the Vessel and entries of the Vessel in a
protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all
compensation payable by virtue of Compulsory Acquisition of the Vessel;
“
Junior Finance Documents
” means the
Credit Documents as defined in the Credit Agreement;
“
Lender Creditors
” means the Lenders, the Assignee and
each other Agent under the Credit Agreement.
“
Liens
” has the meaning ascribed to it in the Credit Agreement;
“
Other Creditors
” means any Lender or any affiliate thereof and their successors, transferees and assigns if
any (even if such Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Assignor enters into
any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
2
“
Secured Creditors
” means collectively (i) the Lender Creditors and
(ii) the Other Creditors;
“
Secured Obligations
” has the meaning ascribed to it in the Credit Agreement;
“
Security Documents
” has the meaning ascribed to it in the Credit Agreement;
“
Security Period
” means the period beginning on the date of this Deed and ending on the date when the whole of the
Secured Obligations have been repaid in full and the Assignor has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense
reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Junior Finance Documents; and
“
Security Trust Deed
” means the Security Trust Deed executed on or about the date hereof by, inter alia, the Assignor,
the Guarantor, the Assignee, the Original Secured Creditors (as defined therein) and the Original Term Hedging Creditors (as defined therein).
|
2
|
Covenant to Pay and Perform
|
The Assignor covenants with the Assignee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or
pursuant to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
|
3
|
Assignment and Negative Pledge
|
In
consideration of (A) the Beneficiaries making certain facilities available to the Assignor pursuant to the Credit Agreement, any Interest Rate Protection Agreements and/or any Other Hedging Agreements, (B) payment by the Assignee to the
Assignor of ten Dollars (USD10) and (C) other good and valuable consideration from the Assignee to the Assignor (the adequacy and receipt whereof is hereby acknowledged by the Assignor) and as security for payment of the Secured Obligations,
the Assignor with full title guarantee hereby assigns, and grants a security interest in, and agrees to assign, and grant a security interest in, to the Assignee absolutely all its right and title to and interest in the Insurances to hold the same
absolutely unto the Assignee subject to the First Assignment, the Second Assignment, and the Third Assignment.
The
Assignor undertakes that, except with the prior written consent of the Assignee, it will not at any time during the Security Period create or permit to subsist any Liens save for the First Assignment, the Second Assignment and the Third Assignment
(and except for Permitted Liens) on all or any part of the Assignor’s right and title to and interest in the Insurances.
3
|
4
|
Notice of Assignment of Insurances
|
The Assignor undertakes immediately to give notice of the assignment of the Insurances contained in Clause 3 to all brokers, insurance companies, underwriters, protection and indemnity and/or war risk
associations through whom any of the policies or entries relating to the Insurances are effected in the form of Schedule 5 and to obtain from such brokers, insurance companies or underwriters a letter of undertaking in the form of Schedule 6 or in
such other form as the Agents may require and from such protection and indemnity or war risk associations in the form of Schedule 7 or in such other form as the Agents may agree.
|
5
|
Application of Proceeds of Insurances
|
All proceeds of the Insurances received by the Assignee pursuant to the assignment in this Deed shall be applied in accordance with the loss payable clauses endorsed on the Insurances, clause 8 of the
Fourth Priority Security Co-ordination Deed and section 4.05 of the Credit Agreement.
The
Assignor hereby irrevocably appoints and constitutes the Assignee as its true and lawful attorney with full power (in the name of the Assignor or otherwise) to demand, compound and give acquittance for any monies and claims for monies due or to
become due, to endorse any cheque or other instrument or order in connection therewith and to file any claims or take any action or institute any proceedings which may seem to the Assignee to be necessary or advisable and otherwise to do any and all
things which the Assignor itself could do in relation to the property hereby assigned provided that the power of attorney created by this Clause 6 shall take effect only from and after the occurrence of an Event of Default, subject to the provisions
of the Fourth Priority Security Co-ordination Deed. The exercise of such power by the Assignee shall not put any person dealing with the Assignee on any enquiry and the exercise by the Assignee of such power shall be conclusive evidence of its right
to exercise it. The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this Deed shall do in its capacity as such, to the extent permissible hereunder.
|
7
|
Assignor’s Liability Unaffected by Assignment
|
|
|
7.1
|
It is agreed that notwithstanding the assignment contained herein:
|
|
|
7.1.1
|
the Assignee shall not be obliged to make any enquiries as to the nature or sufficiency of any payment received by the Assignee or its order under those assignments or
to make any claim or take any other action to collect any monies or to enforce any rights and benefits assigned to the Assignee or to which the Assignee may at any time be entitled thereunder; and
|
|
|
7.1.2
|
the Assignor shall remain liable to perform all the obligations assumed by it in relation to the Insurances and the Assignee shall not be under any obligation of any
kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Assignor to perform its obligations in respect thereof.
|
4
|
|
8.1
|
This Deed and the assignments herein shall be:
|
|
|
8.1.1
|
a continuing security remaining in full force and effect until payment in full of each and every part of the Secured Obligations;
|
|
|
8.1.2
|
in addition to and not in substitution for or in derogation of any other security held by the Assignee from time to time in respect of the Secured Obligations.
|
The
Assignor will, from time to time on being required to do so by the Assignee, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Assignee as the Assignee may reasonably
consider necessary for giving full effect to any of the Security Documents including this Deed or securing to the Assignee the full benefit of the rights, powers and remedies conferred upon the Assignee in any such Security Document including this
Deed.
The
Assignor shall reimburse the Assignee on demand for the charges and expenses (including the fees and expenses of legal advisors and value added tax or any similar tax thereon) incurred by it in connection with the enforcement of, or the preservation
of, any rights under this Deed.
|
11
|
Waivers, Remedies Cumulative
|
No failure to
exercise and no delay in exercising on the part of the Assignee any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. No waiver by the Assignee shall be effective unless it is in writing.
The
rights and remedies of the Assignee provided herein are cumulative and not exclusive of any rights or remedies provided by law.
If any
provision of this Deed or any of the other Security Documents is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
Time is
of the essence in respect of all of the obligations of the Assignor under this Deed provided however that the Assignee shall not be entitled to enforce its rights under the assignment contained in this Deed otherwise than in circumstances which
constitute an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed.
5
|
|
12.1
|
Benefit of agreement
|
This Deed shall be binding upon the Assignor and its successors and assigns and shall inure to the benefit of the Assignee and their
respective successors and assigns.
|
|
12.2
|
Disclosure of information
|
Any of the Beneficiaries may disclose to a potential transferee or assignee or to any other person who may otherwise propose to enter into
contractual relations with any of them in relation to this Deed such information about the Assignor as such Beneficiary shall consider appropriate subject always to the provisions of section 14.14 of the Credit Agreement where, for the purpose of
this Deed, references to “
Lender
” shall be read and construed as “
Beneficiary
”.
|
|
12.3
|
Contracts (Rights of Third Parties) Act 1999 (the “Act”)
|
A person who is not a party to this Deed has no right under the Act to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from
the Act.
Following the repayment or payment to the Assignee of all the Secured Obligations, the Assignee will at the Assignor’s request and
expense reassign to the Assignor the property assigned to the Assignee by this Deed without recourse to any representation or warranty by or from the Assignee.
All demands and
notices made or given hereunder shall be made or given in accordance with section 14.03 of the Credit Agreement.
|
15
|
Governing Law and Jurisdiction
|
|
|
15.1
|
This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
|
15.2
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
15.2.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
15.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 15.2 is for the benefit of the Assignee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
6
|
|
15.3
|
The Assignor waives any objection which it may now or later have (whether on the ground of forum non conveniens or otherwise) to any proceedings relating to this Deed
being brought in the courts of England or in any court which is covered by Clause 15.2.
|
|
|
15.4
|
The Assignor agrees to comply with section 15.07 of the Credit Agreement relating to the Process Agent.
|
|
|
15.5
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Assignor and may be enforced without
review in any other jurisdiction.
|
|
|
15.6
|
Nothing in this Clause 15 shall exclude or limit any right which the Assignee may have (whether under the laws of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
15.7
|
In this Clause “
judgment
” includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
7
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
PRIDE OF HAWAII, LLC
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact,
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
by
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
8
Schedule 1
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
(as trustee and agent)
9
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as
lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn:
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export
Finance
8 Canada Square
London E14
5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
10
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan Bachmann
Email:
stephan.bachmann@ca-cib.com
11
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris Lai
Email:
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
12
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
13
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as
lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn:
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export
Finance
8 Canada Square
London E14
5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
14
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
15
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as
lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn:
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of
Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
16
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email:
lam.curacao@dvbbank.com/james.neira@dvbbank.com
Part III
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
17
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as
lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn:
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export
Finance
8 Canada Square
London E14
5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
18
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
OVERSEA-CHINESE BANKING CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
|
|
|
|
|
Fax:
|
|
+65 6536 6449/6532 5347
|
|
Attn:
|
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
19
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 74221 197
|
|
Attn:
|
|
Mr Stephan Bachmann
|
|
Email:
|
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
|
|
|
|
Fax:
|
|
+852 2868 1448
|
|
Attn:
|
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
20
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended
and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
As trustee for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
(as security agent and agent)
21
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/
|
|
|
|
Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW IPEX-BANK GMBH
Palmengartenstrasse
5-9
60325 Frankfurt am Main
Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
22
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 484278
|
|
Attn:
|
|
Mr Arne Berglund
|
|
Email:
|
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
|
|
|
|
Fax:
|
|
+44 131 659 1194
|
|
Attn:
|
|
Douglas Newton/Russell Parker
|
|
Email:
|
|
douglas_newton@bankofscotland.co.uk
|
23
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
|
Mr Peter-Alexander Wunner/
|
|
|
|
Mr Michael McCarthy
|
|
Email:
|
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
|
michael.mccarthy@unicreditgroup.de
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
|
|
|
|
Fax:
|
|
+49 421 3609 329
|
|
Attn:
|
|
Dr Matthias Fischer
|
|
Email:
|
|
matthias.fischer@schiffsbank.com
|
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 85 407990
|
|
Attn:
|
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
|
oivind.haraldsen@fokus.no/
|
|
|
|
tore.braein@fokus.no
|
24
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3333 613741
|
|
Attn:
|
|
Mr Carsten Dreyer
|
|
Email:
|
|
carsten.dreyer@hsh-nordbank.com
|
|
|
|
|
|
Fax:
|
|
+1 212 407 6008
|
|
Attn:
|
|
Ms Frauke Hay
|
|
Email:
|
|
frauke.hay@hsh-nordbank.com
|
SKANDINAVISKA ENSKILDA
BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
|
|
|
|
Fax:
|
|
+44 20 7236 5144
|
|
Attn:
|
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
|
egil.aarrestad@seb.co.uk/
|
|
|
|
malcolm.stonehouse@seb.co.uk
|
25
Schedule 4
EUR126,075,000 Credit Agreement effective November 18, 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 2944
|
|
Attn:
|
|
Ship Finance, X2a4
|
|
Email:
|
|
Claudia Wenzel
|
|
|
Claudia.wenzel@kfw.de
|
As Trustee for
:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 486668
|
|
Attn:
|
|
Mr Arne Berglund
|
|
Email:
|
|
arne.berglund@nordea.com
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Marcus Weber
|
|
|
|
Ms Anne Randewig
|
|
Email:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Ms Amra Koluder
|
|
|
|
Mr Solveig N. Knoff
|
|
Email:
|
|
amra.koluder@dnbnor.no
|
|
|
|
solveig.knoff@dnbnor.no
|
26
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 4466/ 2944
|
|
Attn:
|
|
Mr Stephan Pueschel
|
|
|
|
Mr Christian Schweiger
|
|
Email:
|
|
stephan.pueschel@kfw.de
|
|
|
|
christian.schweiger@kfw.de
|
HSBC BANK PLC
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 207 992 4428
|
|
Attn:
|
|
Alan P. Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
And each other Secured
Creditor under and as defined in the Credit Agreement.
27
Schedule 5
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
PRIDE OF HAWAII, LLC
of Wilmington, Delaware, United States of America, the owners of the motor vessel “NORWEGIAN JADE”
(the “
Vessel
”) hereby give notice that by a fourth legal assignment dated 2010 entered into by us with
KFW
IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for certain secured parties (the “
Assignee
”) and in consideration of (a) certain secured parties making certain facilities available to
the Assignor pursuant to a credit agreement, any interest rate protection agreement and/or any other hedging agreement, (b) payment by the Assignee to us of ten Dollars (USD10) and (c) other good and valuable consideration from the
Assignee to us (the adequacy and receipt whereof we hereby acknowledge), and as security for payment of the obligations under the credit document and related agreements, we have assigned, and granted a fourth priority security interest in and to,
absolutely all our right and title to and interest in all insurances in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed.
Please note that this Notice may not be revoked or varied without the prior written consent of the Assignee.
|
|
|
|
|
PRIDE OF HAWAII, LLC
|
|
|
|
|
By:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
Date:
|
|
2010
|
28
Schedule 6
Dated:
2010
Dear Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
PRIDE OF HAWAII, LLC (the “Assignor”)
We confirm that we have effected
insurances for the account of the Assignor as set out in Appendix “A” attached.
Pursuant to instructions received from the Assignor
and/or their authorised managers or agents and in consideration of your approving us as the appointed brokers in connection with the insurances covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Appendix “B” attached; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment in the form of Appendix “C” hereto dated and signed by the
Assignor and acknowledged by underwriters in accordance with market practice; and
|
|
4.
|
to advise you promptly if we cease to be the brokers for the Assignor or in the event of any material changes of which we are aware affecting the said insurance; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Assignor and/or their authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof;
and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
|
29
|
8.
|
not to change the effectiveness of the assignment to the assignee of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Assignee.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the said Notice of Assignment, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a
collision and/or salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid
and the guarantor has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this
undertaking shall be submitted to the exclusive jurisdiction of the English courts.
This undertaking is subject to all claims and returns of
premiums being collected through us as brokers.
Yours faithfully
30
Appendix A to letter of undertaking
Details of insurances
31
Appendix B to letter of undertaking
Loss Payable Clause
It
is noted that by a fourth assignment in writing dated 2010 the shipowner
PRIDE OF HAWAII, LLC
(the
“
Assignor
”) has assigned to
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee (the “
Assignee
”) all the Assignor’s right, title, benefits and interests in this
policy and all benefits hereof including all claims of whatsoever nature hereunder. All claims in respect of a total or constructive total or an arranged or agreed or compromised total loss or requisition of the Vessel shall be paid to the Assignee.
All other claims payable either in respect of a major casualty (that is to say any casualty in respect whereof the claim or the aggregate of the claims exceeds [*] shall be paid to the Assignor or its order, subject to the prior written consent of
the Assignee. All other claims, unless and until the underwriters have received notice from the Assignee of a default under the mortgage dated
2010, in which event all claims under this policy of Insurance shall be payable direct to the Assignee, shall be released
directly for the repair, salvage or other charges involved or, if the Assignor has paid such charges, in reimbursement thereof to the Assignor. Please note that this Notice may not be revoked or varied without the prior written consent of the
Assignee.
32
Appendix C to letter of undertaking
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
PRIDE OF HAWAII, LLC
of
Wilmington, Delaware, United States of America, the owners of the motor vessel “NORWEGIAN JADE” (the “
Vessel
”) hereby give notice that by a fourth assignment dated
2010 entered into by us with
KFW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee
for certain secured parties (the “
Assignee
”) and in consideration of (a) certain secured parties making certain facilities available to the Assignor pursuant to a credit agreement, any interest rate protection agreement and/or
any other hedging agreement, (b) payment by the Assignee to us of ten Dollars (USD10) and (c) other good and valuable consideration from the Assignee to us (the adequacy and receipt whereof we hereby acknowledge), and as security for
payment of the obligations under the credit document and related agreements, we have assigned, and granted a fourth priority security interest in and to, absolutely all our right and title to and interest in all insurances in respect of the Vessel,
including the insurances constituted by the policy on which this notice is endorsed.
|
|
|
|
|
PRIDE OF HAWAII, LLC
|
|
|
|
|
By:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
Date:
|
|
2010
|
33
Schedule 7
|
|
as trustees (the “
Assignee
”)
|
Dated: 2010
Dear Sirs
m.v. “NORWEGIAN JADE” (Official Number 9000236) (the “Vessel”)
PRIDE OF HAWAII, LLC (the “Assignor”)
We acknowledge receipt of notice of an assignment to the Assignee of the insurances on the Vessel. So far as
[
] (the “
Association
”) is concerned, the managers do not consent to such assignment for the purposes of Rule
[ ], other than to give efficacy to the Loss Payable Clause set out below and subject always to the Association’s right under Rule [ ].
We do confirm however that the Vessel is entered in this Association for Protection and Indemnity risks on the terms and conditions set out or to be set out in the Certificate of Entry. Furthermore, in
consideration of your agreeing to the entry or continuing entry of the Vessel in this Association, the managers agree:
|
1.
|
that the Assignor shall not cease to be insured by the Association in respect of the Vessel by reason of such assignment (see Rule [ ]); and
|
|
2.
|
that, notwithstanding that the Vessel is mortgaged to the Assignee and that no undertaking or guarantee has been given to the Association to pay all contributions due
in respect of the Vessel, the Assignor do not cease to be insured by reason of the operation of Rule [ ].
|
It is further agreed that the following Loss Payable Clause will be included in the Certificate of Entry:
“Payment of any recovery the Assignor are entitled to make out of the funds of the Association in respect of any liability, cost or expense incurred
by them shall be made to the Assignor or their order unless and until the Association receives notice to the contrary from [•] as trustees pursuant to an assignment of insurances over the vessel “NORWEGIAN JEWEL” dated 2010 stating
that a default has occurred under the Mortgage dated 2010, in which event all recoveries shall thereafter be paid to the said
[•] as trustees or their order; provided always that no liability whatsoever shall attach to the Association, its Managers or their Agents for failure to comply with the latter obligation until after the expiry of two (2) clear business
days from the receipt of such notice.”
The Association undertakes:
|
1.
|
to inform you if the directors give the Assignor notice under Rule [ ] that their insurance in the Association in respect of the Vessel is to
cease at the end of the then current policy year;
|
34
|
2.
|
to give you ten (10) days’ notice of the Association’s intention to cancel the insurance of the Assignor by reason of their failure to pay when due and
demanded any sum due from them to the Association.
|
Yours faithfully
35
EXHIBIT H
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED 2010
PRIDE OF HAWAII, LLC
(as owner)
to
KFW IPEX-BANK GMBH,
(as mortgagee)
FORM OF
FOURTH DEED OF COVENANTS
m.v. “NORWEGIAN JADE”
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1
|
|
Definitions
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Owner’s Covenant to Pay and Perform
|
|
|
4
|
|
|
|
|
|
|
3
|
|
Mortgage
|
|
|
4
|
|
|
|
|
|
|
4
|
|
Owner’s Covenants
|
|
|
5
|
|
|
|
|
|
|
5
|
|
Owner’s Insurance Covenants
|
|
|
5
|
|
|
|
|
|
|
6
|
|
Owner’s Covenants as to Operation and Maintenance
|
|
|
9
|
|
|
|
|
|
|
7
|
|
Protection and Maintenance of Security
|
|
|
15
|
|
|
|
|
|
|
8
|
|
Mortgagee’s Powers
|
|
|
15
|
|
|
|
|
|
|
9
|
|
Ancillary Provisions
|
|
|
16
|
|
|
|
|
|
|
10
|
|
Receiver
|
|
|
17
|
|
|
|
|
|
|
11
|
|
Appropriation
|
|
|
18
|
|
|
|
|
|
|
12
|
|
Power of Attorney
|
|
|
18
|
|
|
|
|
|
|
13
|
|
Further Assurance
|
|
|
18
|
|
|
|
|
|
|
14
|
|
Discharge of Security
|
|
|
18
|
|
|
|
|
|
|
15
|
|
Notices
|
|
|
19
|
|
|
|
|
|
|
16
|
|
Governing Law and Submission to Jurisdiction
|
|
|
19
|
|
|
|
|
|
|
17
|
|
Miscellaneous
|
|
|
20
|
|
|
|
|
|
Schedule 1
|
|
|
2
|
|
|
|
|
|
Schedule 2
|
|
|
6
|
|
|
|
|
|
Schedule 3
|
|
|
14
|
|
|
|
|
|
Schedule 4
|
|
|
19
|
|
(i)
DEED OF COVENANTS
Dated 2010
BETWEEN
|
(1)
|
PRIDE OF HAWAII, LLC
a Delaware corporation and having its registered office at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United
States of America (the
“
Owner
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries pursuant to the Security Trust Deed and the Credit Agreement (the
“Mortgagee”
).
|
WHEREAS
:
|
(A)
|
The Owner is the absolute legal and beneficial owner of all the sixty four sixty fourth
(64/64
th
) shares of and in the motor vessel
“NORWEGIAN JADE” registered in the name of the Owner under the Bahamian flag at the port of Nassau with Official Number 9000236.
|
|
(B)
|
Pursuant to a first priority mortgage over the Vessel dated 10 February 2008 covering
64/64
th
of the Vessel (the
“First
Mortgage
”) the Owner mortgaged the whole of the Vessel upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the
“First
Mortgagee
”).
|
|
(C)
|
Pursuant to a second priority mortgage over the Vessel dated 2 April 2009 covering 64/64
th
of the Vessel (the
“Second Mortgage
”) the Owner mortgaged the whole of the Vessel upon the terms and
conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the parties set out in Schedule 2 (the
“Second Mortgagee
”).
|
|
(D)
|
Pursuant to a third priority mortgage over the Vessel dated 2 April 2009 covering 64/64
th
of the Vessel (the
“Third Mortgage”
) the Owner mortgaged the whole of the Vessel upon the terms and
conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and for the parties set out in Schedule 3 (the
“Third Mortgagee”
).
|
|
(E)
|
Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries (as defined below) under or pursuant to the Junior Finance Documents, the
Owner has executed and delivered in favour of the Mortgagee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to mortgage and charge the Mortgaged Premises in favour of the Mortgagee as trustee for itself and the
Beneficiaries as security for the repayment of the Secured Obligations (as defined below).
|
|
(F)
|
By a deed of co-ordination dated as of the date hereof (the
“Fourth Priority Security Co-ordination Deed”
) made between (among others) (1) the
First Mortgagee, (2) the Second Mortgagee, (3) the Third Mortgagee and (4) the Mortgagee the parties have agreed (among other things) as to how the provisions of Clause 11 shall operate. Further by the Fourth Priority Security
Co-ordination Deed it has been agreed that the benefit of this Mortgage shall be held by the Mortgagee on trust for itself and the Secured Creditors, including the Secured Creditors set out in Schedule 4, and its and their respective successors,
assignees and transferees (together the
“Beneficiaries”
).
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NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED
as follows:
In this Deed
the following terms shall have the meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed. The
headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed.
“Annex VI”
means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in
1978 and 1997) (as the same may be amended from time to time);
“Assigned Property”
means the Insurances, the
Earnings and the Requisition Compensation;
“Compulsory Acquisition”
means requisition for title or other
compulsory acquisition of the Vessel including its capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or
purporting to act on behalf of any such government or governmental authority or agency;
“Compulsory Acquisition
Compensation”
means all moneys or other compensation whatsoever payable by reason of the Compulsory Acquisition of the Vessel (otherwise than by requisition for hire);
“
Credit Agreemen
t
”
means that certain €126,075,000 Credit Agreement dated November [•], 2010, among NCL Corporation Ltd., as parent (the “Parent”), the
Owner, as borrower, various lenders from time to time party thereto (the “Lenders”), the Mortgagee, as facility agent and collateral agent, Nordea Bank Norge ASA, as documentation agent, Commerzbank AG, as Hermes agent, and other parties
thereto, as amended, novated and/or restated or otherwise modified from time to time.
“Document of
Compliance”
means a document issued to a vessel operator as evidence of its compliance with the requirements of the ISM Code;
“Earnings”
means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire and passage monies, proceeds of requisition (other than proceeds of Compulsory
Acquisition), rebates and commissions, all earnings deriving from contracts of affreightment, pooling agreements, joint ventures, compensation, remuneration for salvage and towage services, damages howsoever arising and detention monies, damages for
breach of any charterparty or other contract for the employment of the Vessel, any amounts payable in consideration of the termination or variation of any charterparty or other such contract, any reduction in the Hermes Premium repaid by Hermes to
the Owner and any other earnings whatsoever due or to become due to the Owner;
“Event of Default”
has the
meaning ascribed to it in the Credit Agreement;
2
“IAPPC”
means an international air pollution prevention certificate issued
under Annex VI;
“Insurances”
means all policies and contracts of insurance of the Vessel and entries of the
Vessel in a protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also
include all compensation payable by virtue of Compulsory Acquisition of the Vessel;
“ISM Code”
means the
International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation;
“ISPS Code”
means the International Ship and Port Facility Security Code adopted by the International Maritime Organisation;
“ISSC”
means an international ship security certificate issued for a vessel under the ISPS Code;
“
Junior Finance Documents
” means the “Credit Documents”, as such term is defined in the Credit Agreement;
“
Lender Creditors
” means the Lenders and the Agents under the Credit Agreement, each in their respective
capacities.
“the Manager”
means NCL (Bahamas) Ltd.;
“the Mortgaged Premises”
includes:
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(b)
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the Compulsory Acquisition Compensation;
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“
Obligors
” means the Credit Parties, as such term is defined in the Credit Agreement;
“
Other Creditors
” means any Lender or any affiliate thereof and their successors, transferees and assigns if any (even if such Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Owner enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to
time.
“person”
includes any body of persons;
“Requisition Compensation”
means all compensation or other money which may from time to time be payable to the Owner as a
result of the Compulsory Acquisition of the Vessel;
“Safety Management Certificate”
means a document issued
to a vessel as evidence that the vessel operator and its shipboard management operate in accordance with an approved Safety Management System;
“Safety Management System”
means a structured and documented system enabling the personnel of a vessel operator to implement effectively the safety and environmental protection policy of
such vessel operator;
3
“
Secured Creditors
” means collectively (i) the Lender Creditors and
(ii) the Other Creditors;
“
Secured Obligations
” has the meaning ascribed to such term in the Credit
Agreement;
“
Security Documents
” has the meaning ascribed to such term in the Credit Agreement;
“Security Period”
means the period beginning on the date of this Deed and ending on the date when the whole of the
Secured Obligations have been repaid in full and the Owner has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense
reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Security Documents;
“Security Trust Deed
” means the Security Trust Deed executed on or about the date hereof by, inter alia, the Owner, the Guarantor, the Mortgagee, the Original Secured Creditors (as
defined therein) and the Original Term Hedging Creditors (as defined therein).
“Senior Loan Agreement”
means
the document referred to in Schedule 1;
“Senior Security Documents”
means the documents listed in schedule 1,
schedule 2 and schedule 3 of the Fourth Priority Security Co-ordination Deed and any other document which may at any time be executed by any person as security for the payment of all or any part of the Senior Indebtedness (as defined in the Fourth
Priority Security Co-ordination Deed);
“Total Loss”
means any actual or constructive or arranged or agreed or
compromised total loss or Compulsory Acquisition of the Vessel; and
“Vessel”
means the motor vessel more
particularly described in Recital (A) hereto and includes any share or interest therein and its engines, machinery, boats, tackle, outfit, spare gear, fuel, consumable or other stores, belongings and appurtenances whether on board or ashore and
whether now owned or hereafter acquired;
“war risks”
includes the risks of mines and all risks excluded from
the standard form of English marine policy by the free of capture and seizure clause.
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2
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Owner’s Covenant to Pay and Perform
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The Owner covenants with the Mortgagee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or pursuant
to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
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3.1
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By way of security for the payment of the Secured Obligations and the performance and observance of and compliance with the covenants, terms and conditions contained in
any of the Junior Finance Documents, the Owner with full title guarantee hereby mortgages and charges to and in favour of the Mortgagee all its interest, present and future, in the Mortgaged Premises (which the Owner hereby warrants to be free at
the date hereof from any other charge or encumbrance whatsoever other than the First Mortgage, the Second Mortgage and the Third Mortgage).
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4
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3.2
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It is declared and agreed that the Security Documents shall be held by the Mortgagee as a continuing security for the payment of the Secured Obligations and that the
security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the amount hereby and thereby secured and that the security so created shall be in addition to and shall not in any way be prejudiced or affected
by any collateral or other security now or hereafter held by the Mortgagee for all or any part of the moneys hereby and thereby secured and that every power and remedy given to the Mortgagee hereunder shall be an addition to and not a limitation of
any and every other power or remedy vested in the Mortgagee under any of the other Security Documents and that all the powers so vested in the Mortgagee may be exercised from time to time and as often as the Mortgagee may deem expedient.
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4.1
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The Owner covenants with the Mortgagee to insure the Vessel in accordance with Clause 5 throughout the Security Period.
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4.2
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The Owner covenants with the Mortgagee to operate and maintain the Vessel in accordance with Clause 6 and in particular but without limitation not to create or permit
to subsist any Liens on the whole or any part of the Assigned Property except for the First Mortgage, the Second Mortgage and the Third Mortgage and any Liens created with the prior consent of the Mortgagee or Permitted Liens.
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5
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Owner’s Insurance Covenants
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5.1
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The Owner covenants with the Mortgagee and undertakes throughout the Security Period:
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5.1.1
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to insure the Vessel, or to procure that the Vessel is insured, in its name and keep the Vessel and procure that the Vessel is kept insured on an agreed value basis for
an amount in Dollars as approved by the Mortgagee provided that the insured value of the Vessel shall at all times be equal to or greater than [*] of the Total Commitment under the Credit Agreement, and the hull and machinery insured value for the
Vessel to be at all times equal to no less than [*] of the total insured value of the Vessel and [*] of the total insured value of the Vessel shall consist of hull interest and freight interest insurance through internationally recognised
independent first class insurance companies, underwriters, war risks and protection and indemnity associations reasonably acceptable to the Mortgagee in each instance on terms and conditions approved by the Mortgagee (with such approval not to be
unreasonably withheld) including as to deductibles but at least in respect of:
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(1)
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marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London insurance markets under English marine policies or
the Norwegian Plan or Mortgagee-approved policies containing the ordinary conditions applicable to similar vessels;
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5
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(2)
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war risks including the Missing Vessel Clause, terrorism, piracy and confiscation, and, should Institute War and Strike Clauses, Hulls Conditions prevail, the London
Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
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(3)
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excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not recoverable in consequence of the
value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
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(4)
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protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently
available is [*] for pollution risk and this to be increased if requested by the Mortgagee and the increase is possible in accordance with the standard protection and indemnity cover for vessels of her type and is compatible with prudent insurance
practice for first class cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period);
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(5)
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when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks;
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(6)
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such other risks as the Mortgagee may from time to time reasonably require;
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and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in respect of similar tonnage
PROVIDED THAT
if
any of such insurances are also effected in the name of any other person (other than the Owner or the Mortgagee) such person shall if so required by the Mortgagee execute a preferred assignment of its interest in such insurances in favour of the
Mortgagees in similar terms mutatis mutandis to the Assignment of Insurances (as defined in the Credit Agreement)
PROVIDED FURTHER THAT
the Owner has first obtained the consent of the First Mortgagee, the Second Mortgagee and the Third
Mortgagee to such an assignment;
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5.1.2
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the Mortgagee at the cost of the Owner or the Parent shall take out, in each case, for an amount in Dollars approved by the Mortgagee but not being, collectively, less
than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance for pollution risks on such conditions as the Mortgagee may reasonably require, the Parent and the Owner having no interest or
entitlement in respect of such policies; the Mortgagee undertakes to use its reasonable endeavours to match the premium level that the Parent or the Owner would have paid if they had arranged such cover on such conditions (as demonstrated to the
reasonable satisfaction of the Mortgagee);
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5.1.3
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if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the
“
EEZ
”) as such term is defined in the US Oil Pollution Act 1990 (“
OPA
”), to comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in
which the Vessel presently trades or may or will
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6
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trade at any time during the existence of this Deed and in particular before such trade is commenced and during the entire period during which such trade is carried on:
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(a)
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to pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Vessel in the market;
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(b)
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to make all such quarterly or other voyage declarations as may from time to time be required by the Vessel’s protection and indemnity association and to comply
with all obligations in order to maintain such cover, and promptly to deliver to the Mortgagee copies of such declarations;
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(c)
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to submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by the Vessel’s protection and indemnity
insurers to maintain cover for such trade and promptly to deliver to the Mortgagee copies of reports made in respect of such surveys;
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(d)
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to implement any recommendations contained in the reports issued following the surveys referred to in sub-clause (c) above within the time limit specified therein
and to provide evidence satisfactory to the Mortgagee that the protection and indemnity insurers are satisfied that this has been done;
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(e)
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in particular strictly to comply with the requirements of any applicable law, convention, regulation, proclamation or order with regard to financial responsibility for
liabilities imposed on the Owner or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and to provide the Mortgagee on demand with such information or evidence as it may
reasonably require of such compliance;
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(f)
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to procure that the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ
or any other provision analogous thereto and to provide the Mortgagee with evidence that this is so; and
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(g)
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strictly to comply with any operational or structural regulations issued from time to time by any relevant authorities under OPA so that at all times the Vessel falls
within the provisions which limit strict liability under OPA for oil pollution;
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5.1.4
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to give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or
associations in the form reasonably approved by the Mortgagee;
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5.1.5
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to execute and deliver all such documents and do all such things as may be necessary to confer upon the Mortgagee legal title to the Insurances in
respect of the Vessel and to procure that the interest of the Mortgagee is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss
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7
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payable clause in the form reasonably approved by the Mortgagee and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and
(b) that a loss payable clause in the form reasonably approved by the Mortgagee and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel;
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5.1.6
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to cause such insurance broker and the P & I club or association providing P & I insurance to agree to advise the Mortgagee by telex or telecopier confirmed by
letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act or omission on the part of the Owner of which it has knowledge and which might invalidate or render
unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such unpaid premium or call, such right being exercisable by the Mortgagee on a vessel by vessel and not on a fleet basis. In addition, the
Parent or the Owner shall promptly provide the Mortgagee with any information which the Mortgagee reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the adequacy of the
insurances effected or proposed to be effected in accordance with the provisions contained herein and in the Credit Agreement as of the date hereof or in connection with any renewal thereof, and the Owner shall upon demand indemnify the Mortgagee in
respect of all reasonable fees and other expenses incurred by or for the account of the Mortgagee in connection with any such report; provided the Mortgagee shall be entitled to such indemnity only for one such report during any period of twelve
months.
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5.1.7
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to procure that each of the relevant brokers and associations furnish the Mortgagee with a letter of undertaking in such usual form as may be reasonably required by the
Mortgagee and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel;
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5.1.8
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punctually to pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce all relevant receipts when so
required by the Mortgagee;
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5.1.9
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to renew each of the Insurances on the Vessel at least [*] days before the expiry thereof and to give immediate notice to the Mortgagee of such renewal and to procure
that the relevant brokers or associations shall promptly confirm in writing to the Mortgagee that such renewal is effected it being understood by the Owner that any failure to renew the Insurances on the Vessel at least [*] days before the expiry
thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default;
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5.1.10
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to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war risks association;
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5.1.11
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to furnish the Mortgagee from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies,
underwriters, associations or clubs with which such Insurances are placed;
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8
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5.1.12
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not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Mortgagee (which approval shall not be unreasonably
withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Owner’s consent in which case the Owner shall notify the Mortgagee of such variation in a timely manner) nor to do any act or
voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not
permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a
variation in the terms of the Insurances is imposed as aforesaid and in the absolute opinion of the Mortgagee its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Mortgagee
would be adversely affected, the Owner undertakes promptly to make such changes to the Insurances, or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Owner
at that time, as the Mortgagee shall reasonably require;
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5.1.13
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not without the prior written consent of the Mortgagee to settle, compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim
of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss;
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5.1.14
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promptly to furnish the Mortgagee with full information regarding any casualties or other accidents or damage to the Vessel involving an amount in excess of [*];
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5.1.15
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to apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all
damage in respect whereof the insurance moneys shall have been received; and
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5.1.16
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that in the event of the Owner defaulting in insuring and keeping insured the Vessel as hereinbefore provided then the Mortgagee may (but shall not be bound to) insure
the Vessel or enter the Vessel in such manner and to such extent as the Mortgagee in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with Interest thereon shall be paid on demand by the
Owner to the Mortgagee.
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6
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Owner’s Covenants as to Operation and Maintenance
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6.1
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The Owner covenants with the Mortgagee and undertakes throughout the Security Period at the Owner’s own expense that it will in respect of the Vessel:
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6.1.1
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keep her in a good and efficient state of repair so as to maintain her to the highest classification available for a vessel of her age and type free of
all recommendations and qualifications with Det Norske Veritas or such other classification society acceptable to the Mortgagee (acting on the instructions of the Required Lenders). On the date hereof and annually thereafter, it will furnish to the
Mortgagee a statement by such classification society that such classification is maintained. It will comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on
board as and
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9
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when required thereby valid certificates showing compliance therewith and shall procure that all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both
as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any substantial modifications or alterations to the Vessel or any part thereof without the prior consent of the Mortgagee;
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6.1.2
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submit her to continuous survey in respect of her machinery and hull and such other surveys as may be required for classification purposes and, if so required by
the Mortgagee, supply to the Mortgagee copies in English of the survey reports;
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6.1.3
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permit surveyors or agents appointed by the Mortgagee to board the Vessel at all reasonable times to inspect her condition or satisfy themselves as to repairs
proposed or already carried out and afford all proper facilities for such inspections;
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6.1.4
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comply, or procure that the Manager will comply, with the ISM Code or any replacement of the ISM Code and in particular, without prejudice to the generality of the
foregoing, as and when required to do so by the ISM Code and at all times thereafter:
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(a)
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hold, or procure that the Manager holds, a valid Document of Compliance duly issued to the Owner or the Manager (as the case may be) pursuant to the ISM Code and a
valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code;
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(b)
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provide the Mortgagee with copies of any such Document of Compliance and Safety Management Certificate as soon as the same are issued; and
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(c)
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keep, or procure that there is kept, on board the Vessel a copy of any such Document of Compliance and the original of any such Safety Management Certificate;
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6.1.5
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comply, or procure that the Manager will comply, with the ISPS Code or any replacement of the ISPS Code and in particular, without limitation:
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(a)
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procure that the Vessel and the company responsible for the Vessel’s compliance with the ISPS Code comply with the ISPS Code;
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(b)
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maintain for the Vessel throughout the Security Period a valid and current ISSC; and
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(c)
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provide the Mortgagee with a copy of any such ISSC as soon as the same is issued;
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6.1.6
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comply, or procure that the Manager will comply, with Annex VI or any replacement of Annex VI and in particular, without limitation, to:
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(a)
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procure that the Vessel’s master and crew are familiar with, and that the Vessel complies with, Annex VI;
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10
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(b)
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maintain for the Vessel throughout the Security Period a valid and current IAPPC and provide a copy to the Mortgagee; and
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(c)
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notify the Mortgagee immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC;
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6.1.7
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not employ the Vessel or permit her employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or
prohibited goods or in any manner whatsoever which may render her liable to condemnation in a prize court or to destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world
(whether war be declared or not) it will not employ the Vessel or permit her employment in carrying any contraband goods;
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6.1.8
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promptly provide the Mortgagee with:
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(a)
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all information which the Mortgagee may reasonably require regarding the Vessel, her employment, earnings, position and engagements;
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(b)
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particulars of all towages and salvages; and
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(c)
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copies of all charters and other contracts for her employment and otherwise concerning her;
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6.1.9
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give notice to the Mortgagee promptly and in reasonable detail upon any Obligor becoming aware of:
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(a)
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accidents to the Vessel involving repairs the cost of which will or is likely to exceed [*];
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(b)
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the Vessel becoming or being likely to become a Total Loss or a Compulsory Acquisition;
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(c)
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any recommendation or requirement made by any insurer or classification society or by any competent authority which is not complied with within any time limit relating
thereto;
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(d)
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any writ or claim served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, her Earnings or Insurances;
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(e)
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the occurrence of any Event of Default;
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(f)
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the Vessel ceasing to be registered as a Bahamas vessel or anything which is done or not done whereby such registration may be imperilled;
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(g)
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it becoming impossible or unlawful for it to fulfil any of its obligations under the Security Documents; and
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(h)
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anything done or permitted or not done in respect of the Vessel by any person which is likely to imperil the security created by the Security Documents;
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6.1.10
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promptly pay and discharge all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel
and keep proper books of account in respect thereof
PROVIDED ALWAYS
that the Owner shall not be obliged to compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of
any such contested debt, damage or liability which, either individually or in aggregate exceeds [*] shall forthwith be provided to the Mortgagee. As and when the Mortgagee may so require it will make such books available for inspection on behalf of
the Mortgagee and provide evidence satisfactory to the Mortgagee that the wages and allotments and the insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crew’s wages in respect of any
tax liability are being properly accounted for and that the master has no claim for disbursements other than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection;
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6.1.11
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maintain the type of the Vessel as at the date hereof and not put the Vessel into the possession of any person without the prior consent of the Mortgagee for the
purpose of work being done on her in an amount exceeding or likely to exceed [*] unless such person shall first have given to the Mortgagee a written undertaking addressed to the Mortgagee in terms satisfactory to the Mortgagee agreeing not to
exercise a lien on the Vessel or her Earnings for the cost of such work or for any other reason;
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6.1.12
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promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to
whose jurisdiction the Vessel may from time to time be subject
PROVIDED ALWAYS
THAT
the Owner shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of
any such contested liabilities which, either individually or in aggregate, exceed [*] shall be forthwith provided to the Mortgagee. If the Vessel is arrested or detained for any reason it will procure the Vessel’s immediate release by providing
bail or taking such other steps as the circumstances may require;
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|
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6.1.13
|
give to the Mortgagee at such times as it may from time to time require a certificate, duly signed on the Owner’s behalf as to the amount of any debts, damages and
liabilities relating to the Vessel and, if so required by the Mortgagee, forthwith discharge such debts, damages and liabilities to the Mortgagee’s satisfaction;
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|
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6.1.14
|
maintain the registration of the Vessel as a Bahamas vessel and not do or permit anything to be done whereby such registration may be forfeited or imperilled;
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|
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6.1.15
|
where the Vessel trades in the territorial waters of the United States of America, take all reasonable precautions to prevent any infringements of the
Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which
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12
|
|
the Vessel shall trade (a
“Relevant Jurisdiction”
) and, for this purpose shall (inter alia) enter into a “Carrier Initiative Agreement” with the United States’
Bureau of Customs and Border Protection (if such is possible) or into voluntary arrangements made under the Customs-Trade Partnership Against Terrorism of the United States of America (if such is possible and appropriate to cruise vessels) and
procure that the same (or a similar agreement or arrangement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the Vessel throughout any period of United States of America
(including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading;
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|
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6.1.16
|
subject always to Permitted Chartering Arrangements under and as defined in the Credit Agreement, not enter into:
|
|
|
(a)
|
any pooling agreement or other arrangement for the sharing of any of the Earnings or the expenses of the Vessel; or
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|
|
(b)
|
any demise or bareboat charter; or
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|
|
(c)
|
any charter whereunder two (2) months’ charterhire (or the equivalent thereof) is payable in advance in respect of the Vessel; or
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|
|
(d)
|
any charter of the Vessel or contract of affreightment which, with the exercise of options for extension, could be for a period longer than thirteen (13) months,
|
PROVIDED HOWEVER THAT
the Owner may in respect of the Vessel enter into a bareboat charter on arm’s
length terms and in form approved by the Mortgagee, with any company which is a member of the NCLC Group
PROVIDED THAT
if so requested by the Mortgagee, and without limitation:
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|
(1)
|
any such bareboat charterer shall enter into such deeds (including but not limited to a subordination and assignment deed), agreements and indemnities as the Mortgagee
shall in its absolute discretion require prior to entering into the bareboat charter with the Owner; and
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|
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(2)
|
the Owner shall assign the benefit of any such bareboat charter and its interest in the Insurances to the Mortgagee by way of further security for the Owner’s and
the other Obligors’ obligations under the Security Documents;
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|
|
6.1.17
|
subject always to clause 10.14 of the Senior Loan Agreement referred to in Schedule 1, except with the prior consent of the Mortgagee (acting on the instructions of the
Required Lenders) not:
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|
|
(a)
|
permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel;
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13
|
|
(b)
|
permit any amendment to be made to the terms of the Management Agreement in respect of the Vessel unless the amendment is advised by the Owner’s tax counsel or is
deemed necessary by the parties thereto but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Junior
Finance Documents; or
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|
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(c)
|
permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable);
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|
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6.1.18
|
perform its obligations under each charterparty or employment contract made in respect of the Vessel and take all necessary steps to procure the due performance of the
obligations of any party under any charterparty or contract. It will not without the prior written consent of the Mortgagee rescind, cancel or otherwise terminate any charterparty or contract in respect of the Vessel
PROVIDED ALWAYS THAT
any
determination by it of any such charterparty or contract after such consent is given shall be without responsibility on the part of the Mortgagee who shall be under no liability whatsoever in the event that such termination thereafter be adjudged to
constitute a repudiation of such charterparty or contract by the Owner;
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|
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6.1.19
|
promptly notify the Mortgagee (a) of any default under any such charterparty or contract of which it has knowledge by it and/or by any other party under any other
such charterparty or contract (b) of any such charterparty or contract being frustrated or the performance thereof becoming impossible or substantially different from that contemplated originally by the parties thereto;
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|
|
6.1.20
|
institute and maintain all such proceedings as may be necessary or expedient to preserve or protect the interest of the Mortgagee as assignee and itself under any of
its charterparties or contracts made in respect of the Vessel;
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|
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6.1.21
|
not take or omit to take any action the taking or omission of which might result in any material alteration or impairment of any charterparty or contract made in
respect of the Vessel;
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|
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6.1.22
|
not substitute any other ship or ships for the Vessel under any charterparty or contract made in respect of the Vessel;
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|
|
6.1.23
|
not without the Mortgagee’s prior consent agree to any material variation, modification or amendment in the terms of any charterparty or contract in respect of the
Vessel or release any other party from any of their respective obligations thereunder or waive any breach of the obligations of any person or consent to any such act or omission of any person as would otherwise constitute such breach;
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|
|
6.1.24
|
not without the Mortgagee’s prior consent let or employ the Vessel below approximately the market rate prevailing when the Vessel is fixed; and
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14
|
|
6.1.25
|
procure that the Earnings (if any) are paid in full without set off and free and clear of and without deduction for any taxes, levies, duties, imposts, charges, fees,
restrictions or conditions of any nature whatsoever.
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|
7
|
Protection and Maintenance of Security
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|
|
7.1
|
The Mortgagee shall without prejudice to its other rights and powers hereunder be entitled (but not bound) at any time and as often as may be necessary to take any such
action as it may in its absolute discretion think fit for the purpose of protecting the security created by this Deed and the other Security Documents and each and every expense or liability so incurred by the Mortgagee in or about the protection of
the security shall be repayable by the Owner on demand for the charges and expenses (including the fees and expenses of legal advisers and value added tax or any similar tax thereon).
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|
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7.2
|
Without prejudice to the generality of the foregoing:
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|
|
7.2.1
|
if any of the provisions of Clause 5 hereof shall no longer be in full force and effect the Mortgagee shall be at liberty to effect and thereafter to maintain all such
insurances upon the Vessel as it in its discretion may think fit;
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|
|
7.2.2
|
if any of the provisions of Clause 6.1.1 and 6.1.2 hereof are not complied with the Mortgagee shall be at liberty to arrange for the carrying out of such repairs and/or
surveys as it deems expedient or necessary; and
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|
|
7.2.3
|
if any of the provisions of Clause 6.1.10 hereof are not complied with the Mortgagee shall be at liberty to pay and discharge all such debts, damages and liabilities,
taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings as are therein mentioned and/or take any such measures as it deems expedient or necessary for the purpose of securing the release of the Vessel
|
and each and every expense or liability so incurred by the Mortgagee shall be recoverable from the Owner as provided in Clause 7.1.
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|
8.1
|
Subject always to the provisions of the Fourth Priority Security Co-ordination Deed, if an Event of Default shall occur and the Mortgagee shall demand repayment of all
or any part of the Secured Obligations, the security constituted by this Deed shall become immediately enforceable and at any time thereafter whilst such event shall be continuing the Mortgagee shall be entitled to exercise all or any of the rights,
powers, discretions or remedies vested in the Mortgagee by this Clause without any requirement for any court order or declaration that an Event of Default has occurred. The Mortgagee’s right to exercise those rights, powers, discretions and
remedies shall be in addition to and without prejudice to all other rights, powers, discretions and remedies to which they may be entitled, whether by law or otherwise. The Mortgagee shall be entitled to exercise their rights, powers, discretions
and remedies despite any rule of law or equity to the contrary, and whether or not any previous default shall have been waived, and in particular without any limitations imposed by law.
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15
|
|
8.2
|
In the circumstances described in Clause 8.1 and subject always to the provisions of the Fourth Priority Security Co-ordination Deed, the Mortgagee shall be entitled
(but not obliged) to:
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|
|
8.2.1
|
take possession of the Vessel wherever she be;
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|
|
8.2.2
|
discharge the master and crew of the Vessel and employ a new master and crew;
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|
|
8.2.3
|
navigate the Vessel to such places as the Mortgagee may decide or detain or lay up the Vessel;
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|
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8.2.4
|
in the name of the Mortgagee or the name of the Owner, demand, sue for, receive and give a good receipt for all sums due to the Owner in connection with the Vessel and,
in the name of the Mortgagee or the name of the Owner or the name of the Vessel, commence such legal proceedings as they may consider appropriate, or conduct the defence of any legal proceedings commenced against the Vessel or the Owner in its
capacity as owner of the Vessel;
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|
|
8.2.5
|
sell or dispose of the Vessel either by private treaty or auction, on such terms as the Mortgagee shall think fit (including deferred payment terms and with or without
the benefit of any charterparty or other contract of employment), with the power to make a loan on such terms as the Mortgagee may decide to any prospective purchaser to assist in the purchase of the Vessel, and the power to postpone any sale,
without being liable for any loss caused by any such sale or the postponement of any such sale;
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|
|
8.2.6
|
replace or repair any part of the Vessel or alter it to suit the Mortgagee’s requirements and put it through all appropriate surveys;
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|
|
8.2.7
|
employ agents, servants and others on such terms as the Mortgagee may in their discretion determine;
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|
|
8.2.8
|
charter or load the Vessel on such terms and for the carriage of such passengers or cargoes as the Mortgagee may in their discretion determine.
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|
|
8.3
|
Whenever any right to enter and take possession of the Vessel accrues to the Mortgagee pursuant to Clause 8.2.1, they may require the Owner to deliver, and the Owner
shall on demand, at its own cost and expense, deliver to the Mortgagee the Vessel to a location designated by the Mortgagee as demanded.
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|
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8.4
|
For the avoidance of doubt, if the Mortgagee takes any action or enters into or completes any transaction pursuant to Clause 8.2 after an Event of Default has been
remedied, that action or transaction shall not be affected by the remedying of the Event of Default.
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|
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9.1
|
In connection with the exercise of its rights, powers, discretions and remedies under Clause 8 or otherwise as mortgagees of the Vessel and, subject always to the
provisions of the Fourth Priority Security Co-ordination Deed, the Mortgagee shall have power to buy in, rescind or vary any contract for sale of the Vessel and generally to do all things in connection with the sale of the Vessel as they shall think
fit.
|
16
|
|
9.2
|
On any sale of the Vessel by the Mortgagee, the purchaser shall not be bound to enquire whether the Mortgagee’s power of sale has become exercisable or whether its
exercise has become expedient, and the purchaser shall not be affected by any notice that the sale was or may have been irregular in any way. The receipt of the Mortgagee for any amounts paid to them shall be a complete discharge to the purchaser
who shall not be concerned with the application of the payment or be answerable for any misapplication. As regards any purchaser, any such sale shall be deemed to be within the power of sale conferred on the Mortgagee by this Deed and at law and any
remedy of the Owner in respect of any irregularity or impropriety shall be in damages only.
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|
|
9.3
|
If the Mortgagee takes possession of the Vessel, until its sale the Mortgagee shall be entitled to deal with the Vessel in all respects as if they were the owners of
the Vessel.
|
Subject always
to the provisions of the Fourth Priority Security Co-ordination Deed:
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|
10.1
|
at any time after the occurrence and during the continuation of an Event of Default the Mortgagee may (but shall not be obliged to) appoint any suitably experienced and
reputable person (in the opinion of the Mortgagee) to be receiver and/or manager of the Vessel and/or any of the Assigned Property;
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|
|
10.2
|
the appointment of a receiver and/or manager by the Mortgagee may be made in writing under the hand of any authorised signatory of the Mortgagee;
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|
|
10.3
|
the Mortgagee shall have the power to authorise any joint receiver and/or manager to exercise any or all of their powers independently of any other joint receiver
and/or manager;
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|
|
10.4
|
the Mortgagee may at any time and from time to time remove any receiver and/or manager from office and appoint a replacement;
|
|
|
10.5
|
the Mortgagee shall have the power from time to time to fix the remuneration of any receiver and/or manager on the basis of charging from time to time adopted by him or
his firm and any receiver and/or manager shall not be limited to any maximum amount or rate specified by law;
|
|
|
10.6
|
any receiver and/or manager appointed pursuant to this Clause shall be the agent of the Owner and the Owner shall be solely responsible for his acts and defaults and
for the payment of his remuneration;
|
|
|
10.7
|
any receiver and/or manager appointed pursuant to this Clause shall have all the powers conferred on receivers and/or managers or administrative receivers by law
without any restriction, whether imposed by law or otherwise;
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|
|
10.8
|
without limitation, any receiver and/or manager shall have power on behalf of the Owner (and at the Owner’s expense) to do or omit to do anything which the Owner
could do or omit to do in relation to the Vessel or any of the Assigned Property and may exercise all or any of the rights, powers, discretions and remedies conferred on the Mortgagee by the Security Documents or at law;
|
17
|
|
10.9
|
no receiver and/or manager shall be liable as mortgagee in possession to account or be liable for any loss on realisation of or any default of any nature in connection
with the Vessel or any of the Assigned Property, or the exercise of any of the rights, powers, discretions and remedies vested in the receiver and/or manager by virtue of the Security Documents or at law.
|
All
amounts received by the Mortgagee arising from the exercise by the Mortgagee of their rights, powers, discretions and remedies under or pursuant to this Mortgage (including, without limitation, all amounts received by the Mortgagee in connection
with the taking possession and/or sale of the Vessel, any chartering or other use of the Vessel by the Mortgagee, and any claims for damages or claims on any insurance received by the Mortgagee while in possession of or while chartering or using the
Vessel or any Compulsory Acquisition Compensation) shall be applied by the Mortgagee in accordance with clause 3 of the Fourth Priority Security Co-ordination Deed.
|
|
12.1
|
The Owner hereby irrevocably appoints the Mortgagee as its attorney for the duration of the Security Period for the purpose of doing in its name all acts which the
Owner itself could do in relation to the Vessel
PROVIDED HOWEVER
that such power shall not be exercisable by or on behalf of the Mortgagee until payment of the Secured Obligations shall have been demanded under Clause 8.
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|
|
12.2
|
The exercise of such power by or on behalf of the Mortgagee shall not put any person dealing with the Mortgagee upon any enquiry as to whether payment of the Secured
Obligations has been demanded nor shall such person be in any way affected by notice that payment of the Secured Obligations has not been so demanded and the exercise by the Mortgagee of such power shall be conclusive evidence to such person of the
Mortgagee’s right to exercise the same.
|
|
|
12.3
|
The Owner hereby ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this Clause 12 shall do in its capacity as such, to the
extent permissible hereunder.
|
The
Owner agrees that from time to time on the written request of the Mortgagee it will immediately execute and deliver to the Mortgagee all further documents which the Mortgagee may reasonably require for the purpose of perfecting or protecting the
security intended to be created by this Deed.
Following the repayment and termination in full of all Secured Obligations the Mortgagee will, at the cost of and on the request of the Owner, execute and deliver to the Owner a discharge of this Deed,
without recourse to any representation or warranty by or from the Mortgagee.
18
The provisions
of section 14.03 of the Credit Agreement shall (mutatis mutandis) apply to this Deed as if they were set out in full with references to this Deed substituted for references to the Credit Agreement.
|
16
|
Governing Law and Submission to Jurisdiction
|
|
|
16.1
|
This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
|
16.2
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
16.2.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
16.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 16.2 is for the benefit of the Mortgagee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
This Deed shall be governed by and construed in accordance with the Laws of England and for the exclusive benefit of the
Mortgagee the Owner hereby irrevocably submits to the jurisdiction of the High Courts of Justice in England. Such submission shall not limit the right of the Mortgagee to commence any proceedings relating to this Deed (in addition or alternatively)
in any other jurisdiction which the Mortgagee deems fit.
|
|
16.2.3
|
The Owner waives any objection which it may now or later have (whether on the ground of forum non conveniens or otherwise) to any proceedings relating to this Deed
being brought in the courts of England or in any court which is covered by Clause 16.2.
|
|
|
16.2.4
|
The Owner agrees to appoint an agent in London for the Service of Process for the duration of the Security Period.
|
|
|
16.2.5
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Owner and may be enforced without review
in any other jurisdiction.
|
|
|
16.2.6
|
Nothing in this Clause 16 shall exclude or limit any right which the Mortgagee may have (whether under the laws of any country, an international convention or
otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
19
|
|
16.2.7
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
|
|
17.1
|
If at any time any provision of this Deed becomes invalid, illegal or unenforceable in any respect that provision shall be severed from the remainder and the validity,
legality and enforceability of the remaining provisions of this Deed shall not be affected or impaired in any way.
|
|
|
17.2
|
In the event of there being any conflict between this Deed and a Junior Finance Document, that Junior Finance Document shall prevail.
|
|
|
17.3
|
This Deed may be executed in any number of counterparts, each of which shall be original but which shall together constitute the same instrument.
|
|
|
17.4
|
All the covenants and agreements of the Owner in this Deed shall bind the Owner and its successors and permitted assignees and shall inure to the benefit of the
Beneficiaries.
|
|
|
17.5
|
The headings used in this Deed are for reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed.
|
|
|
17.6
|
The representations and warranties on the part of the Owner contained in this Deed shall survive the execution and registration of this Deed.
|
|
|
17.7
|
The Mortgagee and/or the other Beneficiaries may at any time and from time to time waive either unconditionally or on such terms and conditions as they consider
appropriate any breach of any of the Junior Finance Documents, or any of the Security Documents or the Fourth Priority Security Co-ordination Deed by any of the Obligors.
|
|
|
17.8
|
Any waiver by the Mortgagee or any of the other Beneficiaries of any of their or its rights, powers, discretions or remedies pursuant to the Credit Agreement, the
Security Documents or the Fourth Priority Security Co-ordination Deed or of any breach by any of the Obligors or any forbearance by the Mortgagee or any of the other Beneficiaries, or any time or other indulgence granted by the Mortgagee or any of
the other Beneficiaries to any of the Obligors, shall not in any way prejudice or affect the right of the Mortgagee and the other Beneficiaries to act strictly in accordance with their rights and powers under or pursuant to the Credit Agreement, the
Security Documents or the Fourth Priority Security Co-ordination Deed.
|
|
|
17.9
|
The Mortgagee and/or the other Beneficiaries may, without prejudice to their rights pursuant to this Deed, at any time and from time to time, and on such terms and
conditions as the Mortgagee and/or the other Beneficiaries may in their discretion determine, agree with the Obligors to vary or amend the Credit Agreement, or any of the Security Documents, or any document referred to in or related to the Credit
Agreement or any of the Security Documents (including for the avoidance of doubt the Fourth Priority Security Co-ordination Deed, or without notice to the Owner grant time or other indulgence to or compound with any other person liable (actually or
contingently) to the Mortgagee and/or the other Beneficiaries in respect of all or any part of the Secured Obligations, and may release or renew negotiable instruments and take and release securities and hold funds on realisation or suspense account
without affecting the liability of the Owner or the rights of the Mortgagee and the other Beneficiaries under or pursuant to the Credit Agreement, the Security Documents and the Fourth Priority Security Co-ordination Deed.
|
20
|
|
17.10
|
The Mortgagee or any of the other Beneficiaries may at any time and from time to time delegate to any person all or any of their rights, powers, discretions and
remedies pursuant to the Credit Agreement, the Security Documents and the Fourth Priority Security Co-ordination Deed on such terms as they may consider appropriate (including the power to sub-delegate).
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|
|
17.11
|
Every right, power, discretion and remedy conferred on the Mortgagee and the other Beneficiaries under or pursuant to the Credit Agreement, the Security Documents and
the Fourth Priority Security Co-ordination Deed shall be cumulative and in addition to every other right, power, discretion or remedy to which the Mortgagee and the other Beneficiaries may at any time be entitled by law or in equity. The Mortgagee
and the other Beneficiaries may exercise each of their rights, powers, discretions and remedies as often and in such order as they deem appropriate. The exercise or the beginning of the exercise of any right, power, discretion or remedy shall not be
interpreted as a waiver of the right to exercise that or any other right, power, discretion or remedy either simultaneously or subsequently.
|
|
|
17.12
|
No failure or delay by the Mortgagee or any of the other Beneficiaries in exercising any of their rights, powers, discretions or remedies shall impair any such right,
power, discretion or remedy or be interpreted as a waiver of or acquiescence in any default on the part of the Owner, unless expressly agreed to do so by the Mortgagee in writing.
|
|
|
17.13
|
Subject to the provisions of the Fourth Priority Security Co-ordination Deed, no provision of the Credit Agreement, the Security Documents or the Fourth Priority
Security Co-ordination Deed shall in any way limit the rights, powers, discretions and remedies of the Mortgagee as mortgagees of the Vessel.
|
|
|
17.14
|
The Mortgagee shall not be concerned to enquire into the power of the Owner or any person purporting to act on behalf of the Owner even if the Owner or such person
shall have acted in excess of their powers or if their actions shall have been irregular, defective or informal, whether or not the Mortgagee had notice.
|
|
|
17.15
|
The security constituted by this Deed shall be continuing and shall not be satisfied by any intermediate payment or satisfaction until the Secured Obligations shall
have been repaid in full and neither the Mortgagee nor any of the other Beneficiaries shall be under any further actual or contingent liability to any third party in relation to the Vessel, the Assigned Property or any other matter referred to in
the Credit Agreement, the Security Documents or the Fourth Priority Security Co-ordination Deed. The security constituted by this Deed shall be in addition to any other security now or in the future held by the Beneficiaries or by the Mortgagee for
or in respect of the Secured Obligations, and shall not merge with or prejudice or be prejudiced by any such security or any other contractual or legal rights of the Mortgagee or the other Beneficiaries nor be affected by any irregularity, defect or
informality or by any release, exchange or variation of any such security.
|
21
|
|
17.16
|
If the Mortgagee takes any steps to exercise any of their rights, powers, remedies or discretions pursuant to this Deed and the result shall be adverse to the
Mortgagee, the Owner and the Mortgagee shall be restored to their former positions as if no such steps had been taken.
|
|
|
17.17
|
Neither the Mortgagee nor any agent or employee of the Mortgagee nor any receiver and/or manager appointed by the Mortgagee shall be liable for any losses which may be
incurred in or about the exercise of any of the rights, powers, discretions or remedies of the Mortgagee under or pursuant to this Deed nor liable as mortgagees in possession for any loss on realisation or for any neglect or default of any nature
for which mortgagees in possession might otherwise be liable, except for losses as a result of gross negligence or wilful misconduct on the part of a Trustee, its agent, employee, receiver or manager.
|
|
|
17.18
|
Any discharge, release or reassignment by the Mortgagee and/or the other Beneficiaries of any of the security constituted by, or any of the obligations of the Owner
contained in, the Credit Agreement or any of the Security Documents shall be (and be deemed always to have been) void if any act (including, without limitation, any payment) as a result of which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided by operation of any law.
|
|
|
17.19
|
If the Mortgagee (despite Clause 4.2) receives notice of any subsequent Lien affecting the Vessel or any of the Assigned Property, the Mortgagee may open a new account
in their books for the Owner and/or the Vessel. If the Mortgagee do not open such a new account, then (unless the Mortgagee give written notice to the contrary to the Owner) as from the time of receipt by the Mortgagee of notice of such subsequent
Lien, all payments made to the Mortgagee shall be treated as having been credited to a new account of the Owner and not as having been applied in reduction of the Secured Obligations.
|
|
|
17.20
|
The rights of the Mortgagee under this Deed shall not be affected by any change in the constitution of the Owner or by the liquidation, bankruptcy or insolvency of the
Owner.
|
|
|
17.21
|
No variation or amendment of this Deed shall be valid unless in writing and signed on behalf of the Owner and the Mortgagee.
|
|
|
17.22
|
Notwithstanding anything to the contrary contained in this Deed, it is intended that nothing in this Deed shall waive the preferred status of this Deed and that, if any
provision of this Deed shall be interpreted as waiving the preferred status of this Deed, that provision shall to such extent be void and of no effect.
|
|
|
17.23
|
The exercise by the Mortgagee or by any receiver and/or manager appointed by the Mortgagee of any of their rights, powers, discretions or remedies under or arising out
of this Deed shall not be interpreted as the taking by the Mortgagee or by such receiver and/or manager of the management of the Vessel nor as evidencing any intention by the Mortgagee or by any receiver and/or manager appointed by the Mortgagee to
take over the management of the Vessel.
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22
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
PRIDE OF HAWAII, LLC
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact,
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
by
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
Schedule 1
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan
Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
2
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
3
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr
Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of
Germany
Fax: +49 69 74221 197
Attn: Mr Stephan Bachmann
Email:
stephan.bachmann@ca-cib.com
4
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris Lai
Email:
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
5
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan
Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee
and agent)
6
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
7
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn:
Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
8
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
9
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email: lam.curacao@dvbbank.com/james.neira@dvbbank.com
Part III
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn:
Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
10
COMMERZBANK AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20
7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
11
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69
7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
OVERSEA-CHINESE BANKING CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
Fax: +65 6536 6449/6532 5347
Attn: Ms Lee King Lan/Ms Elaine Lam
Email:
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email:
shipping@nordlb.de
12
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence
Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
13
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
As trustee
for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
(as security
agent and agent)
14
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef
Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
15
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
NORDEA BANK NORGE ASA
Middelthuns gate
17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax: +47 22 484278
Attn: Mr Arne Berglund
Email: arne.berglund@nordea.com
BANK OF SCOTLAND PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey Street
Edinburgh EH3
9BN
Scotland
Fax: +44 131 659
1194
Attn: Douglas Newton/Russell Parker
Email: douglas_newton@bankofscotland.co.uk
16
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
Fax: +49 40 3692 3696/+49 89
378 334 2832
Attn: Mr Peter-Alexander Wunner/Mr Michael McCarthy
Email: peter-alexander.wunner@unicreditgroup.de/
michael.mccarthy@unicreditgroup.de
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
Fax: +49 421 3609 329
Attn: Dr Matthias
Fischer
Email: matthias.fischer@schiffsbank.com
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
Fax: +47 85 407990
Attn: Mr Øivind
Haraldsen/Mr Tore Thorlacius Braein
Email: oivind.haraldsen@fokus.no/tore.braein@fokus.no
17
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 613741
Attn: Mr Carsten Dreyer
Email: carsten.dreyer@hsh-nordbank.com
Fax: +1 212 407 6008
Attn: Ms Frauke Hay
Email: frauke.hay@hsh-nordbank.com
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40
Stockholm
Sweden
Fax: +44 20
7236 5144
Attn: Mr Egil Aarrestad/Mr Malcolm Stonehouse
Email: egil.aarrestad@seb.co.uk/
malcolm.stonehouse@seb.co.uk
18
Schedule 4
EUR126,075,000 Credit Agreement dated November [_] 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49 69 7431 2944
Attn: Ship Finance, X2a4
Claudia Wenzel
Email:
Claudia.wenzel@kfw.de
As Trustee for
:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax: +47 22 486668
Attn: Mr Arne Berglund
Email:
arne.berglund@nordea.com
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
Fax: +49 40 3769 9649
Attn: Mr Marcus Weber
Ms Anne Randewig
Email:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Ms Amra Koluder
Mr Solveig N. Knoff
Email:
amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
19
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49 69 7431 4466/ 2944
Attn: Mr Stephan Pueschel
Mr Christian Schweiger
Email: stephan.pueschel@kfw.de
christian.schweiger@kfw.de
HSBC BANK PLC
8 Canada Square
London E14 5HQ
Fax: +44 207
992 4428
Attn: Alan P. Marshall
Email:
alan.p.marshall@hsbcib.com
And
each other Secured Creditor under and as defined in the Credit Agreement.
20
EXHIBIT I-1
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.
Dated [•] 2010
HULL NO. S. 678
FORM OF ASSIGNMENT OF CONTRACTS
between
BREAKAWAY ONE, LTD.
as Company
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
COVENANT TO PAY
|
|
|
6
|
|
|
3.
|
|
LEGAL ASSIGNMENT
|
|
|
6
|
|
|
4.
|
|
THE CONTRACT
|
|
|
7
|
|
|
5.
|
|
CONTINUING SECURITY
|
|
|
8
|
|
|
6.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
10
|
|
|
7.
|
|
UNDERTAKINGS
|
|
|
12
|
|
|
8.
|
|
FURTHER ASSURANCE
|
|
|
13
|
|
|
9.
|
|
ENFORCEMENT OF SECURITY
|
|
|
13
|
|
|
10.
|
|
RECEIVERS
|
|
|
14
|
|
|
11.
|
|
APPLICATION OF PROCEEDS
|
|
|
15
|
|
|
12.
|
|
POWER OF ATTORNEY
|
|
|
15
|
|
|
13.
|
|
RELEASE OF THE SECURITY
|
|
|
15
|
|
|
14.
|
|
PAYMENTS
|
|
|
15
|
|
|
15.
|
|
WAIVERS AND REMEDIES
|
|
|
16
|
|
|
16.
|
|
ADDITIONAL PROVISIONS
|
|
|
16
|
|
|
17.
|
|
ASSIGNMENT
|
|
|
17
|
|
|
18.
|
|
NOTICES
|
|
|
17
|
|
|
19.
|
|
GOVERNING LAW
|
|
|
19
|
|
|
20.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
20
|
|
|
SCHEDULE 1 FORMS OF NOTICE OF ASSIGNMENT
|
|
|
21
|
|
|
SCHEDULE 2 FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
31
|
|
|
SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
|
41
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY ONE, LTD.,
a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“Company”
); and
|
|
(2)
|
KFW IPEX-BANK GMBH,
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit
Agreement (the “
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ respective obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
|
(C)
|
The Company and the Collateral Agent intend this Assignment to take effect as a deed.
|
|
(D)
|
The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreements, the Security Trust
Deeds and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
|
|
(a)
|
Part 1, in the case of the Construction Contract;
|
|
|
(b)
|
Part 2, in the case of the Refund Guarantees; and
|
|
|
(c)
|
Part 3, in the case of the Construction Risks Insurance Policies; and
|
or in each case in such other form as may be approved by the Collateral Agent.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit
Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and benefits in, to and in
respect of the Contracts.
“
Borrower
” means Pride of Hawaii, LLC (“
POH
”) with respect to the
Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway One Credit Facility
” means the €529,846,154 credit facility dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank
Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Company, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the Shipbuilder and the Company in connection with the construction of
the Vessel under the Construction Contract.
“
Contracts
” means each of the:
|
|
(a)
|
the Construction Contract;
|
|
|
(b)
|
the Refund Guarantees; and
|
|
|
(c)
|
the Construction Risks Insurance Policies.
|
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit Agreement.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in each Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Company, the Lenders, the lenders under the Breakaway One Credit Facility, the collateral agent under the Breakaway One Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the
Jewel Credit Facility).
2
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan
facility, dated on or about the date hereof, among
inter alia
, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
,
the Parent, POH, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“Jewel Credit
Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1
(
Forms of Notice of Assignment
) being:
|
|
(a)
|
Part 1, in the case of the Construction Contract;
|
|
|
(b)
|
Part 2, in the case of each Refund Guarantees;
|
|
|
(c)
|
Part 3, in the case of the Construction Risks Insurance Policies;
|
or in each case such other form as may be approved by the Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at
any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender
subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 1 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the Company and the Collateral Agent as security trustee on behalf of the
ECF Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
3
“
Receiver
” means a receiver and manager or any other receiver (whether
appointed pursuant to this Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company to secure
certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
4
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
5
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Company agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to
any Enforcement Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Collateral Agent.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured
Obligations.
|
3.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Company
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
|
|
3.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Contract
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Company under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or supplement (A) of a
technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the Collateral Agent shall be
required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the Company to perform its
obligations under the Credit Documents;
|
7
|
|
(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
|
|
|
(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Company on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts).
|
|
|
(b)
|
Notwithstanding anything to the contrary herein, the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
|
|
|
(c)
|
The Company acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
|
|
4.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
8
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the
Collateral Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
9
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Company acknowledges that the Collateral Agent has entered into
this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
10
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with each Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway One Credit Facility and each
Credit Agreement, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway One Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
11
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under each Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Company shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
12
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Collateral Agent until delivered provided that,
to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 7.5 to the extent that it fulfils its obligations under clause 7.5 (
Delivery of Cash
) of the Other Vessel 1
Assignment of Contracts.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent shall act in accordance with the terms of any instructions received under the Intercreditor Agreement for the purposes of exercising (or refraining from
exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights
conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
13
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to
apply the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Company.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
14
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Company shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
15
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Company in
16
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway One Credit Facility and the Credit Agreements.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit
Agreements.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deeds.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
17
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
18
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Company agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Company to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
19
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company and the Collateral Agent.
20
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
Part 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [•] (the “
Assignment
”) and made between Breakaway One,
Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and
benefits in, to or in respect of the construction contract dated 24 September 2010 between the Company and you, as shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the passenger cruise ship
(the “
Ship
”) with provisional hull number 678 (the “
Construction Contract
”).
With effect from your receipt
of this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Company as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
,
Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [•],
among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, KfW IPEX-Bank
|
21
|
|
GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent,
all payments to be made to the Company under or arising from the Construction Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(c)
|
following an Event of Default, all remedies of the Company provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Contract are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or changes
to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case unless
such amendment, modification or change is approved in advance by each of the Facility Agents (as defined in each Credit Agreement) and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as
referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Contract. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
22
You are hereby authorised and instructed, without requiring further approval from the Company, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
For and on behalf of
BREAKAWAY ONE, LTD.
23
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
•
] (the “
Assignment
”) and made between Breakaway
One, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and
benefits in, to or in respect of the refund guarantee dated [
•
] and issued by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the
Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
, Pride of Hawaii,
LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [•], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and
the Collateral Agent (together the “
Credit
Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Company provided for in the Refund Guarantee or
available at law or in equity shall be exercisable by the Collateral Agent;
|
24
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral Agent
from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Company.
25
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
For and on behalf of
BREAKAWAY ONE, LTD.
26
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
•
] (the “
Assignment
”) and made between Breakaway
One, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and
benefits in, to or in respect of construction risks insurance policy dated [
•
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel
with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the
Construction Risks Insurance Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
27
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the
lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter
alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the
“
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
28
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
For and on behalf of
BREAKAWAY ONE, LTD.
29
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated
20[•]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [•] has assigned to
KFW IPEX-BANK
GMBH
of [•] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in
writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [•] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee,
the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this
policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s interests in this policy.
30
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE SHIPBUILDER
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in
respect of the Construction Contract) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Construction Contract and that we will
comply with the terms of the Notice.
We also confirm that the Construction Contract is in full force and effect in accordance with its terms.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as
applicable) with respect to the Construction Contract.
For and on behalf of
Meyer Werft GmbH
as
Shipbuilder
By:
Date:
31
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND
GUARANTOR
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in
respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the
terms of the Notice.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as
defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
For and on behalf of
[the Refund Guarantor]
as
Refund Guarantor
By:
Date:
32
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[To be printed only on copy of
the Notice of Assignment given]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
HULL NO. S. 678 (the
“Vessel”)
BREAKAWAY ONE, LTD. (the “Company”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (i) (other than in respect of senior liens
held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Risks Insurance Policy) we have not received notice of any other assignments or charges of or over any of the
Company’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft
GmbH (the “
Yard
”) and the Company as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its
authorised managers or agents and in consideration of you and the Company approving us as the appointed brokers in connection with the insurances covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Company and acknowledged by underwriters in accordance with market practice; and
|
33
|
4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
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6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
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7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
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8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
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9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
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If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
34
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Yours faithfully
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For and on behalf of
[the Broker]
as [Broker]
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By:
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Date:
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35
ANNEX 1
DETAILS OF INSURANCES
36
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated
20[•]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [•] has assigned to
KFW IPEX-BANK
GMBH
of [•] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in
writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [•] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee,
the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this
policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s interests in this policy.
37
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
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Cc:
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KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
•
] (the “
Assignment
”) and made between Breakaway
One, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and
benefits in, to or in respect of construction risks insurance policy dated [
•
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel
with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the
Construction Risks Insurance Policy.
With effect from your receipt of this notice we hereby give you notice that:
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(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
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(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
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(c)
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following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
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(d)
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all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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38
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(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
, Pride of Hawaii, LLC, as borrower, the NCL Corporation Ltd., the
lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter
alia
, Norwegian Jewel Limited, as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the
“
Credit Agreements
”)).
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(f)
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the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
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(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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(h)
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the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
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(i)
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the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
39
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
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Yours faithfully
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For and on behalf of
BREAKAWAY ONE, LTD.
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40
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
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[Name of Issuer]
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[Date of Refund Guarantee]
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41
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SIGNATORIES
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Signed as a deed on behalf of BREAKAWAY ONE, LTD, a company incorporated in Bermuda, by [full name(s) of person(s) signing], being [a] person[s] who, in accordance with the laws of
that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of KFW IPEX-BANK GMBH, a company incorporated in Germany, by [full name(s) of person(s) signing], being [a] person[s] who, in accordance with the laws of
that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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42
EXHIBIT I-2
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.
Dated [•] 2010
HULL NO. S. 692
FORM OF ASSIGNMENT OF CONTRACTS
between
BREAKAWAY TWO, LTD.
as Company
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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COVENANT TO PAY
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6
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3.
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LEGAL ASSIGNMENT
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6
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4.
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THE CONTRACT
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7
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5.
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CONTINUING SECURITY
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8
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6.
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REPRESENTATIONS AND WARRANTIES
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10
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7.
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UNDERTAKINGS
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12
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8.
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FURTHER ASSURANCE
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13
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9.
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ENFORCEMENT OF SECURITY
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13
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10.
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RECEIVERS
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14
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11.
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APPLICATION OF PROCEEDS
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15
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12.
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POWER OF ATTORNEY
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15
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13.
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RELEASE OF THE SECURITY
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15
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14.
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PAYMENTS
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15
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15.
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WAIVERS AND REMEDIES
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16
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16.
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ADDITIONAL PROVISIONS
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16
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17.
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ASSIGNMENT
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17
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18.
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NOTICES
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17
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19.
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GOVERNING LAW
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19
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20.
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COUNTERPARTS AND EFFECTIVENESS
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20
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SCHEDULE 1 FORMS OF NOTICE OF ASSIGNMENT
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21
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SCHEDULE 2 FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
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31
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
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40
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White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
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(1)
|
BREAKAWAY TWO, LTD.,
a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“Company”
); and
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(2)
|
KFW IPEX-BANK GMBH,
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit
Agreement (the “
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
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RECITALS
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(A)
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The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ respective obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
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The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
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(C)
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The Company and the Collateral Agent intend this Assignment to take effect as a deed.
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(D)
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The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreements, the Security Trust
Deeds and the Intercreditor Agreement.
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In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
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(a)
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Part 1, in the case of the Construction Contract;
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(b)
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Part 2, in the case of the Refund Guarantees; and
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(c)
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Part 3, in the case of the Construction Risks Insurance Policies; and
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or in each case in such other form as may be approved by the Collateral Agent.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit
Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and benefits in, to and in
respect of the Contracts.
“
Borrower
” means Pride of Hawaii, LLC (“
POH
”) with respect to the
Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway Two Credit Facility
” means the €529,846,154 credit facility dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank
Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Company, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the Shipbuilder and the Company in connection with the construction of
the Vessel under the Construction Contract.
“
Contracts
” means each of the:
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(a)
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the Construction Contract;
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(b)
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the Refund Guarantees; and
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(c)
|
the Construction Risks Insurance Policies.
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“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit Agreement.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in each Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Company, the Lenders, the lenders under the Breakaway Two Credit Facility, the collateral agent under the Breakaway Two Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the
Jewel Credit Facility).
2
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan
facility, dated on or about the date hereof, among
inter alia
, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
,
the Parent, POH, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“Jewel Credit
Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1
(
Forms of Notice of Assignment
) being:
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(a)
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Part 1, in the case of the Construction Contract;
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(b)
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Part 2, in the case of each Refund Guarantees;
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(c)
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Part 3, in the case of the Construction Risks Insurance Policies;
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or in each case such other form as may be approved by the Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at
any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender
subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 2 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the Company and the Collateral Agent as security trustee on behalf of the
ECF Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
3
“
Receiver
” means a receiver and manager or any other receiver (whether
appointed pursuant to this Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company to secure
certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
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(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
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(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
4
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
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|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
5
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Company agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to
any Enforcement Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Collateral Agent.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured
Obligations.
|
3.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
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|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Company shall countersign such Notice of Assignment.
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|
(b)
|
As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Company
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
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3.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Contract
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
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|
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(i)
|
receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Company under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or supplement (A) of a
technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the Collateral Agent shall be
required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the Company to perform its
obligations under the Credit Documents;
|
7
|
|
(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
|
|
|
(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Company on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts).
|
|
|
(b)
|
Notwithstanding anything to the contrary herein, the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
|
|
|
(c)
|
The Company acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
|
|
4.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
8
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the
Collateral Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
9
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Company acknowledges that the Collateral Agent has entered into
this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
10
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with each Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway Two Credit Facility and each
Credit Agreement, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway Two Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
11
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under each Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Company shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
12
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Collateral Agent until delivered
provided
that
, to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 7.5 to the extent that it fulfils its obligations under clause 7.5 (
Delivery of Cash
) of the Other
Vessel 2 Assignment of Contracts.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent shall act in accordance with the terms of any instructions received under the Intercreditor Agreement for the purposes of exercising (or refraining from
exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights
conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
13
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to
apply the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Company.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
14
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Company shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
15
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Company in
16
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway Two Credit Facility and the Credit Agreements.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit
Agreements.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deeds.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
17
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square New York,
New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified
in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to
18
the contrary) communication) and mailed, telexed, telecopied, delivered or electronic mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all
notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Company agree that they (x) shall notify each other in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when
mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and
properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Company to the Collateral Agent, only if it is addressed in
such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
19
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company and the Collateral Agent.
20
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
Part 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the
“
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in,
to or in respect of the construction contract dated 24 September 2010 between the Company and you, as shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the passenger cruise ship (the
“
Ship
”) with provisional hull number 692 (the “
Construction Contract
”).
With effect from your receipt of
this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Company as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and
(ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party
thereto, KfW IPEX-Bank
|
21
|
|
GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent,
all payments to be made to the Company under or arising from the Construction Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(c)
|
following an Event of Default, all remedies of the Company provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Contract are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or changes
to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case unless
such amendment, modification or change is approved in advance by each of the Facility Agents (as defined in each Credit Agreement) and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as
referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Contract. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
22
You are hereby authorised and instructed, without requiring further approval from the Company, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
23
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between
BREAKAWAY
TWO
, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests
and benefits in, to or in respect of the refund guarantee dated [
—
] and issued by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of
Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH
as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL
Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit
Agreements
”)), written notice
of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Company provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Collateral Agent;
|
24
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral Agent
from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Company.
25
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
26
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between
BREAKAWAY TWO
, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights,
title, interests and benefits in, to or in respect of construction risks insurance policy dated [
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and
the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including
all monies which may be payable to the Company under or in respect of the Construction Risks Insurance Policy.
With effect from your receipt
of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
27
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan
facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein),
KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
28
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
29
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
30
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE SHIPBUILDER
[To be printed only on copy of the Notice of Assignment given]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Contract) we have not
received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Construction Contract and that we will comply with the terms of the Notice.
We also confirm that the Construction Contract is in full force and effect in accordance with its terms. We further agree and confirm that we acknowledge
that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable) with respect to the Construction Contract.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
Meyer Werft GmbH
as Shipbuilder
|
By:
Date:
31
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND GUARANTOR
[To be printed only on
copy of the Notice of Assignment given]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and
benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that
we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
[the Refund Guarantor]
as Refund
Guarantor
|
By:
Date:
32
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[
To be printed only on copy of
the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
HULL NO. S. 692
(the “
Vessel
”)
BREAKAWAY TWO, LTD.
(the
“
Company
”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (i) (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Risks
Insurance Policy) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply
with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its authorised managers or agents and in consideration of you and the Company approving us as the appointed brokers in connection with the insurances
covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Company and acknowledged by underwriters in accordance with market practice; and
|
33
|
4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
|
|
8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
Yours faithfully
For and
on behalf of
[the Broker]
as [Broker]
By:
Date:
34
ANNEX 1
DETAILS OF INSURANCES
35
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
36
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral
Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated [
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.692 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
37
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined
therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
38
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
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|
|
Yours faithfully
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For and on behalf of
BREAKAWAY TWO, LTD.
|
39
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
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[Name of Issuer]
|
|
[Date of Refund Guarantee]
|
40
SIGNATORIES
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY TWO, LTD,
a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH,
a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
|
41
EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
[
], 2010
This Solvency Certificate is delivered pursuant to Section 6.10 of the Credit Agreement, dated as of
[
], 2010, among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), Pride of Hawaii, LLC, a Delaware limited liability company (the
“
Borrower
”), the Lenders from time to time party thereto, KfW IPEX-Bank GmbH, as Facility Agent and as Collateral Agent under the Security Documents, Nordea Bank Norge ASA, as Documentation Agent, Commerzbank Aktiengesellschaft, as
Hermes Agent for the Lenders, and the other parties thereto (as the same may be amended, restated, novated or otherwise modified from time to time, the “
Credit Agreement
”). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, a senior financial officer of
the Parent, hereby certifies to the Facility Agent and each of the Lenders, solely in such capacity and on behalf of the Parent as follows:
1. I am a senior financial officer of the Parent. I am familiar with the Transaction, and have reviewed the financial statements referred to in Section 8.05 of the Credit Agreement and other such
documents and made such investigations as I have deemed relevant for the purposes of this Solvency Certificate.
2. On and as of the date hereof, immediately after giving effect to the transactions under the Credit Agreement
(including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of each New Vessel), the Parent and its Subsidiaries taken as a whole (i) are not insolvent and will not be rendered
insolvent by the Indebtedness incurred in connection with the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of the Vessel);
(ii) will not have unreasonably small capital with which to conduct the business in which they are respectively engaged as such businesses are now conducted and are proposed to be conducted following the Borrowing Date to occur on or about the
date hereof; and (iii) have not incurred debts beyond their ability pay such debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute, matured, or otherwise become payable.
This Solvency Certificate is being delivered by the undersigned officer only in his capacity as a senior financial officer of the Parent
and not individually and the undersigned shall have no personal liability to the Agents or the Lenders with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first
set forth above.
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NCL CORPORATION LTD.
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By:
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Title:
|
EXHIBIT K
F
ORM
O
F
A
SSIGNMENT
A
GREEMENT
|
To: [ ]
|
as Facility Agent and [ ],
[ ] as Hermes Agent, [ ] as Parent, for and on behalf of the Borrower
|
|
From:
|
[the
Existing Lender
] (the “
Existing Lender
”) and [the
New Lender
] (the “
New Lender
”)
|
Dated:
Pride of Hawaii, LLC
–Credit Agreement
Total Commitment - €126,075,000
dated [ ]
(the “Credit Agreement”)
|
1.
|
We refer to the Credit Agreement and to the ECF Intercreditor Agreements (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall
take effect as an Assignment Agreement for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
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2.
|
We refer to section 13.07 (
Procedure and Conditions for Assignment
) of the Credit Agreement:
|
|
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Credit Agreement, the other Credit Documents and in respect of
the Collateral which correspond to that portion of the Existing Lender’s Commitments and participations in Borrowings under the Credit Agreement as specified in the Schedule attached hereto.
|
|
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(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and
participations in Borrowings under the Credit Agreement specified in the Schedule attached hereto.
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(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
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3.
|
The proposed date of the assignment is [ ].
|
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4.
|
On the date of the assignment the New Lender becomes:
|
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(a)
|
Party to the relevant Credit Documents under the Credit Agreement (other than the ECF Intercreditor Agreements and the Security Trust Deed) as a Lender; and
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(b)
|
Party to each ECF Intercreditor Agreement as a Jade Lender; and
|
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(c)
|
Party to the Security Trust Deed as a Secured Creditor.
|
EXHIBIT K
2
|
5.
|
The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule.
|
|
6.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
|
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7.
|
We refer to Clause 9.2 (
Change to the Parties
) of each ECF Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) in the Security Trust
Deed.
|
|
|
(a)
|
In consideration of the New Lender being accepted as a Jade Lender for the purposes of each ECF Intercreditor Agreement (and as defined therein), the New Lender
confirms that, as from the date of assignment, it intends to be party to each ECF Intercreditor Agreement as a Jade Lender, and undertakes to perform all the obligations expressed in each ECF Intercreditor Agreement to be assumed by a Jade Lender
and agrees that it shall be bound by all the provisions of each ECF Intercreditor Agreement, as if it had been an original party to such ECF Intercreditor Agreement.
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(b)
|
In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the assignment, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
|
|
8.
|
This Agreement acts as notice to the Facility Agent (on behalf of each Lender Creditor) and, upon delivery in accordance with section 13.08 (
Copy of Transfer
Certificate or Assignment Agreement to Parent
), to the Parent (on behalf of the Borrower) of the assignment referred to in this Agreement.
|
|
9.
|
We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the assignment becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
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10.
|
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.
|
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11.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
EXHIBIT K
3
|
12.
|
This Agreement takes effect as a deed.
|
|
13.
|
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
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|
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|
Note:
|
|
The execution of this Assignment Agreement may not assign a proportionate share of the Existing Lender’s interest in
the Collateral in all jurisdictions. It is the
responsibility of the New Lender to ascertain whether any other documents
or other formalities are required to perfect an assignment of such a share in the Existing Lender’s Collateral in any
jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
|
EXHIBIT K
4
THE SCHEDULE
Commitment/rights and obligations to be transferred by assignment, release and accession
[
insert relevant details
]
[
Notice Office address, fax number and attention details for notices and account details for payments
]
EXHIBIT K
5
SIGNATORIES
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[Existing Lender]
|
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Executed as a deed by
[name of Existing Lender]
,
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acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
|
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[New Lender] Executed as a deed by
[name of
|
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|
New Lender]
, acting by [
name of director
]:
|
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[
Signature of Director
]
|
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|
Director
|
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[
Signature of Director
]
|
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|
Director
|
This Agreement is accepted as an Assignment
Agreement for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the assignment is confirmed as [ ].
EXHIBIT K
6
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of
receipt of notice of the assignment referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
|
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|
[Facility Agent]
|
|
|
|
|
|
|
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|
|
Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
|
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[
Signature of Director
]
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Director
|
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[
Signature of Director
]
|
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|
Director
|
|
|
|
|
|
[Hermes Agent]
|
|
|
|
|
|
Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
|
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[
Signature of Director
]
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Director
|
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[
Signature of Director
]
|
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|
|
|
|
|
|
Director
|
[NCL Corporation
Ltd.]
1
[Signed as a deed by [
NCL Corporation Ltd.
], a
company incorporated in Bermuda, by [
full name(s)
of person(s)
signing
]
,
being [a] person[s] who, in
|
1
|
To be signed by the Company only if the assignment is pursuant to section 13.01(a)(ii) of the Credit Agreement.
|
EXHIBIT K
7
accordance with the laws of that territory, [is][are]
acting under the authority of the company.
|
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Signature(s)
|
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Authorised [signatory] [signatories]]
|
EXHIBIT L
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is delivered to you on behalf of the Company (as hereinafter defined)
pursuant to Section 9.01(f) of the Credit Agreement, dated as of [ ], 2010 (as amended, supplemented, restated, novated or modified from time to time, the “
Credit
Agreement
”), among NCL Corporation Ltd., a Bermuda company (the “
Company
”) as Parent, Pride of Hawaii, LLC, a Delaware limited liability company (the “
Borrower
”), the Lenders from time to time party
thereto, Nordea Bank Norge ASA, as Documentation Agent, KfW IPEX-Bank GmbH as Facility Agent and Collateral Agent, Commerzbank Aktiengesellschaft, as Hermes Agent, and the other parties thereto. Capitalized terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined.
1. I am a duly elected, qualified and acting senior
financial officer of the Company.
2. I have reviewed and am familiar with the contents of this Certificate. I am providing
this Certificate solely in my capacity as an officer of the Company. The matters set forth herein are true to the best of my knowledge after diligent inquiry.
3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and
financial condition of the Company during the accounting period covered by the financial statements true and correct copies of which are attached hereto as ANNEX 1 (the “
Financial Statements
”). The Financial Statements have been
prepared in accordance with the requirements of the Credit Agreement.
4. Attached hereto as ANNEX 2 are the computations
showing (in reasonable detail) compliance with the covenants specified therein. All such computations are true and correct.
[5. On the date hereof, no Default or Event of Default has occurred and is continuing.]
1
|
1
|
If any Default or Event of Default exists, include a description thereof, specifying the nature and extent thereof (in reasonable detail).
|
Exhibit L
Page 2
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the Company this
day of
.
|
|
|
|
|
|
|
NCL CORPORATION LTD.
|
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
ANNEX 1 to
Compliance Certificate
CONSOLIDATED FINANCIAL STATEMENTS
ANNEX 2 to
Compliance Certificate
COMPLIANCE WORKSHEET
The calculations described herein is as of
,
(the
“Computation Date”) and pertains to the period from
,
to
,
(the “Test Period”).
Part A. Free Liquidity
|
|
|
|
|
|
|
1. Aggregate Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
2. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
$
|
_______________
|
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
$
|
_______________
|
|
|
|
|
|
4. Is Item 3 equal to or greater than [*] pursuant to Section 10.06 of the Credit
Agreement?
|
|
|
YES/NO
|
|
Part B. Total Net Funded Debt to
Total Capitalization
|
|
|
|
|
|
|
1. Indebtedness for Borrowed Money of the NCLC Group on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
2. The amount of any Indebtedness for Borrowed Money of any person which is not a member of
the NCLC Group but which is guaranteed by a member of the NCLC Group on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
3. Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
4. Item 1
plus
Item 2
minus
Item 3
2
|
|
$
|
_______________
|
|
|
|
|
|
5. Total Capitalization on the Computation Date
|
|
$
|
_______________
|
|
|
|
|
|
6. Total Net Funded Debt to Total Capitalization Ratio (Item 4:Item 5) on the Computation
Date.
|
|
|
__________:1.00
|
|
|
2
|
Any Commitments under the Credit Agreement and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group
which remain undrawn shall not be counted as cash or indebtedness for the purposes of this calculation.
|
Exhibit L
Page 2
|
|
|
|
|
|
|
7. The maximum Total Net Funded Debt to Total Capitalization Ratio pursuant to Section 10.07
of the Credit Agreement:
|
|
|
[
|
*]
|
Part C. Collateral Maintenance
|
|
|
|
|
|
|
1. Outstanding principal amount of Loans on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
2. Outstanding the principal amount of loans under the Existing Jewel Facility on the
Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
3. Item 1
plus
Item 2.
|
|
$
|
_______________
|
|
|
|
|
|
4. Vessel Value.
|
|
$
|
_______________
|
|
|
|
|
|
5. Minimum Vessel Value for the Vessel permitted pursuant to Section 10.08 of the Credit
Agreement.
|
|
|
Item 1 multiplied
by [*]
|
|
|
|
|
|
6. Is Item 4 equal to or greater than Item 5 pursuant to Section 10.08 of the
Credit Agreement?
|
|
|
YES/NO
|
|
Part D. Consolidated EBITDA to
Consolidated Debt Service
|
|
|
|
|
|
|
1. Consolidated Net Income from the Parent’s operations for the Test
Period.
|
|
$
|
_______________
|
|
|
|
|
|
2. Aggregate amounts deducted in determining Consolidated Net Income for the Test Period in
respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for the Test
Period.
|
|
$
|
_______________
|
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
$
|
_______________
|
|
|
|
|
|
4. Consolidated Debt Service for the Test Period.
|
|
$
|
_______________
|
|
|
|
|
|
5. Consolidated EBITDA to Consolidated Debt Service Ratio (Item 3:Item 4) on the Computation
Date.
|
|
|
__________:1.00
|
|
|
|
|
|
6. The minimum Consolidated EBITDA to Consolidated Debt Service Ratio pursuant to
Section 10.09 of the Credit Agreement:
|
|
|
[*]
|
|
Exhibit L
Page 3
|
|
|
|
|
|
|
|
|
|
7. Aggregate Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
8. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
$
|
_______________
|
|
|
|
|
|
9. Item 7
plus
Item 8
|
|
$
|
_______________
|
|
|
|
|
|
10. Is (x) Item 9 for the NCLC Group equal to or greater than [*] at all times during the period
of four consecutive fiscal quarters ending at the end of the Test Period or (y) Item 5 greater than or equal to Item 6 pursuant to Section 10.09 of the Credit Agreement?
|
|
|
YES/NO
|
|
EXHIBIT M-1
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY ONE, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate
Collateral Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
EXHIBIT M-1
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
|
1. DEFINITIONS AND INTERPRETATION
|
|
|
2
|
|
|
2. PRIORITY AND RANKING
|
|
|
7
|
|
|
3. NOTIFICATIONS
|
|
|
8
|
|
|
4. RESTRICTIONS ON ENFORCEMENT
|
|
|
8
|
|
|
5. MANNER OF ENFORCEMENT
|
|
|
9
|
|
|
6. TURNOVER OF RECEIPTS
|
|
|
11
|
|
|
7. APPLICATION OF PROCEEDS
|
|
|
11
|
|
|
8. PRESERVATION
|
|
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12
|
|
|
9. CHANGES TO THE PARTIES
|
|
|
14
|
|
|
10. POWER OF ATTORNEY
|
|
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15
|
|
|
11. AMENDMENTS
|
|
|
15
|
|
|
12. THIRD PARTY RIGHTS
|
|
|
15
|
|
|
13. COUNTERPARTS
|
|
|
15
|
|
|
14. NOTICES
|
|
|
15
|
|
|
15. PERPETUITY PERIOD
|
|
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17
|
|
|
16. GOVERNING LAW
|
|
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17
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|
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17. ENFORCEMENT
|
|
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17
|
|
|
SCHEDULE 1 ECF SECURITY DOCUMENTS
|
|
|
19
|
|
|
SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
|
|
|
20
|
|
|
SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
|
|
|
21
|
|
|
SCHEDULE 4 ADDRESS DETAILS
|
|
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23
|
|
(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated [•] 2010 and made between:
|
(1)
|
KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
|
|
(2)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
|
|
(4)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
|
|
(5)
|
BREAKAWAY ONE, LTD.
(the “
Debtor
”);
|
|
(6)
|
KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
|
|
(7)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
|
NOW THIS DEED WITNESSES
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 1 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
|
|
(a)
|
words denoting the plural number include the singular and vice versa;
|
|
|
(b)
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
|
|
(c)
|
references to Clauses are references to clauses of this Deed;
|
|
|
(d)
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
|
|
(e)
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
(f)
|
references to any party include its successors, transferees and assignees.
|
The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
|
3.1
|
If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
|
|
3.2
|
If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
|
|
4.
|
RESTRICTIONS ON ENFORCEMENT
|
|
4.1
|
Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
|
|
|
(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
|
|
|
(b)
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
|
PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
|
|
(i)
|
filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
|
|
|
(ii)
|
from demanding payment of any of the Term Loan Indebtedness; or
|
|
|
(iii)
|
supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
|
but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
|
4.2
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
|
8
|
4.3
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
|
|
5.1
|
Enforcement Instructions
|
|
|
(a)
|
Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
|
|
|
(b)
|
After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
|
|
|
(c)
|
Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(d)
|
After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(e)
|
Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
|
If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
|
5.4
|
Manner of enforcement
|
If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
|
5.5
|
Exercise of voting rights
|
|
|
(a)
|
Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
|
|
|
(b)
|
The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
|
To the
extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the
Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
|
5.8
|
Certificates in relation to ECF Indebtedness
|
Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
|
5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
|
|
(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
|
|
|
(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
|
7.
|
APPLICATION OF PROCEEDS
|
|
7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
|
|
|
(a)
|
in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
|
|
|
(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
|
|
|
(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
|
|
|
(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
|
|
|
(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
|
|
|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The provisions of this Deed will not be affected by an act, omission, matter or thing which,
but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
15
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
16
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of Contracts
”).
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The ECF 1 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of Contracts”
).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of KfW Refund Guarantees”
).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
|
From:
|
[
Acceding Creditor/Agent
]
|
THIS
UNDERTAKING is made on [
date
] by [
insert full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [
—
] between KfW IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the
Jewel Lenders, Breakaway One, Ltd. as Debtor, KfW IPEX-Bank GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the Intercreditor Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes
of the Intercreditor Deed, the Acceding [
Creditor
/ Agent] confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging
Creditor
] and undertakes to perform all the obligations expressed in the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be
bound by all the provisions of the Intercreditor Deed, as if it had been an original party to the Intercreditor Deed.
This Undertaking and
any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS UNDERTAKING
has been entered
into on the date stated above.
Acceding [
Creditor
/ Agent]
[EXECUTED
as a
DEED]
[
insert full name of Acceding Creditor / Agent
]
By:
Address:
Fax:
21
|
|
|
Accepted by the Collateral Agent
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
Date:
|
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Germany
Telephone:
+49 69 7431 4649 / 4037
Fax: +49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
23
SIGNATORIES
|
|
|
|
|
|
|
THE ECF FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
24
|
|
|
|
|
|
|
THE JADE FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
THE JEWEL FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
THE ORIGINAL ECF LENDERS
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
THE ORIGINAL JADE LENDERS
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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THE ORIGINAL JEWEL LENDERS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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THE DEBTOR
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Signed as a deed on behalf of
BREAKAWAY ONE, LTD.
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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THE COLLATERAL AGENT
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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EXHIBIT N
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THE DELEGATE COLLATERAL AGENT
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Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by [
name
of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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EXHIBIT M-2
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY TWO, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate Collateral Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
EXHIBIT M-2
TABLE OF CONTENTS
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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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PRIORITY AND RANKING
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7
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3.
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NOTIFICATIONS
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8
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4.
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RESTRICTIONS ON ENFORCEMENT
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8
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5.
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MANNER OF ENFORCEMENT
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9
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6.
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TURNOVER OF RECEIPTS
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11
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7.
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APPLICATION OF PROCEEDS
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11
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8.
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PRESERVATION
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12
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9.
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CHANGES TO THE PARTIES
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14
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10.
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POWER OF ATTORNEY
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15
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11.
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AMENDMENTS
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15
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12.
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THIRD PARTY RIGHTS
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15
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13.
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COUNTERPARTS
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15
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14.
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NOTICES
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15
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15.
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PERPETUITY PERIOD
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17
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16.
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GOVERNING LAW
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17
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17.
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ENFORCEMENT
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18
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SCHEDULE 1 ECF SECURITY DOCUMENTS
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19
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SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
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20
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SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
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21
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SCHEDULE 4 ADDRESS DETAILS
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23
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(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated
[
—
] 2010 and made between:
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(1)
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KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
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(2)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
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(3)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
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(4)
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THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
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(5)
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BREAKAWAY TWO, LTD.
(the “
Debtor
”);
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(6)
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KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
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(7)
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
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NOW THIS DEED WITNESSES
as follows:
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1.
|
DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 2 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
|
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(a)
|
words denoting the plural number include the singular and vice versa;
|
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(b)
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
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|
(c)
|
references to Clauses are references to clauses of this Deed;
|
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|
(d)
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
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|
(e)
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
(f)
|
references to any party include its successors, transferees and assignees.
|
The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
|
3.1
|
If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
|
|
3.2
|
If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
|
|
4.
|
RESTRICTIONS ON ENFORCEMENT
|
|
4.1
|
Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
|
|
|
(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
|
|
|
(b)
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
|
PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
|
|
(i)
|
filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
|
|
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(ii)
|
from demanding payment of any of the Term Loan Indebtedness; or
|
|
|
(iii)
|
supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
|
but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
|
4.2
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
|
8
|
4.3
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
|
|
5.1
|
Enforcement Instructions
|
|
|
(a)
|
Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
|
|
|
(b)
|
After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
|
|
|
(c)
|
Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(d)
|
After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(e)
|
Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
|
If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
|
5.4
|
Manner of enforcement
|
If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
|
5.5
|
Exercise of voting rights
|
|
|
(a)
|
Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
|
|
|
(b)
|
The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
|
To the
extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the
Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
|
5.8
|
Certificates in relation to ECF Indebtedness
|
Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
|
5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
|
|
(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
|
|
|
(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
|
7.
|
APPLICATION OF PROCEEDS
|
|
7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
|
|
|
(a)
|
in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
|
|
|
(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
|
|
|
(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
|
|
|
(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
|
|
|
(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
|
|
|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The provisions of this Deed will not be affected by an act, omission, matter or thing which,
but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
15
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
16
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of Contracts
”).
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The ECF 2 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of Contracts
”).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
|
From:
|
[
Acceding Creditor/Agent
]
|
THIS
UNDERTAKING is made on [
date
] by [
insert full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [
—
] between KfW IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the
Jewel Lenders, Breakaway Two, Ltd. as Debtor, KfW IPEX-Bank GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the Intercreditor Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes
of the Intercreditor Deed, the Acceding [
Creditor
/ Agent] confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging
Creditor
] and undertakes to perform all the obligations expressed in the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be
bound by all the provisions of the Intercreditor Deed, as if it had been an original party to the Intercreditor Deed.
This Undertaking and
any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS UNDERTAKING
has been entered
into on the date stated above.
Acceding [
Creditor
/ Agent]
[EXECUTED
as a
DEED]
[
insert full name of Acceding Creditor / Agent
]
21
|
|
|
Accepted by the Collateral Agent
|
|
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
|
|
|
|
Date:
|
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
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NORDEA BANK NORGE ASA
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Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
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23
SIGNATORIES
THE ECF FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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24
THE JADE FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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THE JEWEL FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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THE ORIGINAL ECF LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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THE ORIGINAL JADE LENDERS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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THE ORIGINAL JEWEL LENDERS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
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Director
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THE DEBTOR
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Signed as a deed on behalf of
BREAKAWAY TWO, LTD.
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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THE COLLATERAL AGENT
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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EXHIBIT N
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THE DELEGATE COLLATERAL AGENT
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Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by [
name of director
]:
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[
Signature of Director
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Director
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[
Signature of Director
]
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Director
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EXHIBIT M-3
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION
DATED NOVEMBER 2010
PRIDE OF HAWAII, LLC
(as owner)
-and-
HSBC BANK PLC
(as first mortgagee)
-and-
DnB NOR BANK ASA
(as second mortgagee)
-and-
DnB NOR BANK ASA
(as third mortgagee)
-and-
KFW IPEX-BANK GMBH
(as fourth mortgagee)
FOURTH DEED
OF CO-ORDINATION
m.v.
“
NORWEGIAN JADE
”
STEPHENSON HARWOOD
One, St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/1647/47-02885/47-02886/47-02887/49-00640
CONTENTS
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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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Consent of Senior Mortgagees
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4
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3
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Subordination
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4
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4
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Priority
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5
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5
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Covenants of the Fourth Mortgagee
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6
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6
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Notice to Third Parties
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7
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7
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Sale of Vessel
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7
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8
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Insurance Proceeds
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8
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9
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Payment of Junior Indebtedness
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8
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10
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Senior Mortgagees’ Rights
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9
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11
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Assignment
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9
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12
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Consents and Approvals
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9
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13
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Partial Invalidity
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10
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14
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Further Assurance
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10
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15
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Miscellaneous
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10
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16
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Notices
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10
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17
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Counterparts
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11
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18
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Law and Jurisdiction
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11
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SCHEDULE 1
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14
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SCHEDULE 2
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17
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SCHEDULE 3
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23
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SCHEDULE 4
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27
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DEED OF CO-ORDINATION
Dated: November 2010
BETWEEN:
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(1)
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PRIDE OF HAWAII, LLC
of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as owner (the
“
Owner
”);
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(2)
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HSBC BANK PLC
of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First Mortgagee
”);
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(3)
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DnB NOR BANK ASA
acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the Guaranteed Trustees (the “
Second
Mortgagee
”);
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(4)
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DnB NOR BANK ASA
acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the Non-Guaranteed Trustee (the “
Third
Mortgagee
” and together with the First Mortgagee and the Second Mortgagee the “
Senior Mortgagees
”); and
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(5)
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KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for itself and the parties set out in Schedule 4 (the
“
Fourth Mortgagee
”).
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WHEREAS:
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(A)
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The Owner is the absolute owner of all the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JADE” (the “
Vessel
”) registered in the
name of the Owner under the Bahamian flag at the port of Nassau with Official Number 9000236.
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(B)
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On 10 February 2008 the Owner executed a first priority Bahamian statutory mortgage over all the shares in the Vessel (the “
First Mortgage
”) in
favour of the First Mortgagee in its capacity as trustee for the parties set out in Schedule 1;
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(C)
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On 2 April 2009 the Owner executed a second priority Bahamian statutory mortgage over all the shares in the Vessel (the “
Second Mortgage
”) in
favour of the Second Mortgagee in its capacity as trustee for itself and the Guaranteed Trustees;
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(D)
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On 2 April 2009 the Owner executed a third priority Bahamian statutory mortgage over all the shares in the Vessel (the “
Third Mortgage
”) in favour
of the Third Mortgagee in its capacity as trustee for itself and the Non-Guaranteed Trustee;
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(E)
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The Owner proposes to execute a fourth priority Bahamian statutory mortgage over all of the shares in the Vessel (the “
Fourth Mortgage
”) upon the terms
and conditions therein in favour of the Fourth Mortgagee in its capacity as collateral agent for itself and the parties set out in Schedule 4.
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(F)
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The Parties have agreed to enter into this deed of co-ordination (this “
Deed
”) (among other things) to regulate how the provisions of clause 11 of the
collateral deed of covenants to the Fourth Mortgage shall operate.
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THIS DEED WITNESSES
as follows:
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1
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Definitions and Interpretation
|
“
Assigned
Property
” means the Insurances, the Charter and the Earnings.
“
Bareboat Charterer
” means NCL
(Bahamas) Ltd.
“
Business Day
” means a day on which banks are open for the transaction of business of the
nature contemplated by each Loan Agreement in New York, London, Frankfurt am Main and Oslo.
“
Charter
” means
the bareboat charter dated as of 10 February 2008 between the Owner as owner and the Bareboat Charterer as charterer in respect of the Vessel.
“
Earnings
” means all hires, freights, pool income and other sums payable to or for the account of the Owner or the Bareboat Charterer in respect of the Vessel including (without
limitation) all remuneration for salvage and towage services, demurrage and detention moneys, contributions in general average, compensation in respect of any requisition for hire, and damages and other payments (whether awarded by any court or
arbitral tribunal or by agreement or otherwise) for breach, termination or variation of any contract for the operation, employment or use of the Vessel.
“
Guaranteed Trustees
” means the so-named parties referred to in Schedule 2.
“
Insurances
” means all policies and contracts of insurance (including all entries in protection and indemnity or war risks associations) which are from time to time taken out or entered
into in respect of or in connection with the Vessel or her increased value or the Earnings and (where the context permits) all benefits under such contracts and policies, including all claims of any nature and returns of premium.
“
Junior Indebtedness
” means the aggregate from time to time of the indebtedness of the Owner to the Fourth Mortgagee
under or pursuant to the Junior Security Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent. For the avoidance of doubt, indebtedness of persons other than the Owner (including
NCLC and Euler Hermes Kreditversicherungs-AG) shall not constitute Junior Indebtedness
.
“
Junior Loan
Agreement
” means the loan agreement referred to in Schedule 4.
“
Junior Loans
” means the loans
made pursuant to the Junior Loan Agreement and “
Junior Loan
” means any one of them.
“
Junior Security
Documents
” means the documents referred to in Schedule 4 and annexed hereto.
“
Loan Agreement
” means
each Senior Loan Agreement and the Junior Loan Agreement.
“
Mandatory Prepayment
” means the prepayment of the
relevant part of the Junior Loans in full if (a) the construction contract in respect of a New Vessel is terminated prior to the delivery date of such New Vessel (b) the delivery date of the relevant New Vessel does not occur on or before
(I) in the case of the part of the
2
Junior Loans related to the first New Vessel, 23 December 2013 and (II) in the case of the part of the Junior Loans related to the second New Vessel, 8 December 2014 (c) either new
export credit facility to be entered into by the purchasers of the New Vessels shall terminate or (d) certain insolvency events occur with respect to the yard that is building the New Vessels, in each case, as more fully described in and in
accordance with the terms of the Junior Loan Agreement.
“
NCLC
” means NCL Corporation Ltd. of Milner House, 18
Parliament Street, Hamilton HM 12, Bermuda.
“
New Vessels
” means the two (2) newbuild cruise vessels each
not larger than m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of passenger cabins or gross or net tonnage, not on order by NCLC or any of its wholly owned subsidiaries on the
Effective Date (as defined in supplemental deeds dated 22 July 2010 to each of the Senior Loan Agreements).
“
Non-Guaranteed Trustee
” means the so-named party referred to in Schedule 3.
“
Party
” means each party to this Deed.
“
Prior Co-ordination Deeds
” means the deed dated 2 April 2009 made between (among others) the First Mortgagee, the Second Mortgagee and the Owner in relation to the Senior Security
Documents referred to in Schedule 1 and Schedule 2 and the deed dated 2 April 2009 made between (among others) the First Mortgagee, the Second Mortgagee, the Third Mortgagee and the Owner in relation to the Senior Security Documents referred to
in Schedule 1, Schedule 2 and Schedule 3.
“
Security Period
” means the period beginning on the date of this
Deed and ending on the date when the whole of the Senior Indebtedness has been repaid in full.
“
Senior
Indebtedness
” means the aggregate from time to time of the indebtedness of the Owner to the Senior Mortgagees under or pursuant to any of the Senior Security Documents whether in respect of principal, interest, costs or otherwise and
whether present, future, actual or contingent.
“
Senior Loan Agreements
” means each loan agreement referred to
in Schedule 1, Schedule 2 and Schedule 3 and “
Senior Loan Agreement
” means any one of them.
“
Senior Security Documents
” means the documents referred to in Schedule 1, Schedule 2 and Schedule 3 and any other
document which may at any time be executed by any person as security for the payment of all or any part of the Senior Indebtedness.
“
Supplemental Deeds
” means the supplemental deeds to the Senior Loan Agreements referred to in Schedule 1 and Schedule 2 entered into on or around the date hereof.
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1.2.1
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words denoting the plural number include the singular and vice versa;
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3
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1.2.2
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words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
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1.2.3
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references to Clauses are references to clauses of this Deed;
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1.2.4
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references to this Deed include the recitals to this Deed;
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1.2.5
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the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
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1.2.6
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references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
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1.2.7
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references to any party include its successors, transferees and assignees.
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2
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Consent of Senior Mortgagees
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On the terms and subject to the conditions contained in this Deed, the Senior Mortgagees consent to the execution and, where appropriate, registration of the Junior Security Documents substantially in the
form of the drafts set out in the annexes hereto.
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3.1
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In consideration of the consent of the Senior Mortgagees contained in Clause 2, the Fourth Mortgagee agrees with the Senior Mortgagees that, at all times during the
Security Period, all rights and powers of the Fourth Mortgagee in respect of the Junior Indebtedness and all rights and powers of the Fourth Mortgagee against the Owner, the Vessel and the Assigned Property (whether pursuant to the Junior Security
Documents or otherwise) shall be subordinated to all rights and powers of the Senior Mortgagees in respect of the Senior Indebtedness and all rights, powers, discretions and remedies of the Senior Mortgagees under or pursuant to the Senior Security
Documents.
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3.2
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The Owner agrees that its obligations in respect of the Junior Indebtedness are, and shall throughout the Security Period be, subordinated to its obligations in respect
of the Senior Indebtedness.
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3.3
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The Owner and the Fourth Mortgagee agree that no repayments of principal or payments of interest may be made in respect of the Junior Indebtedness during the Security
Period, other than:
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3.3.1
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in the amounts and on the dates set out in the Junior Loan Agreement provided that no repayments of principal or payments of interest may be made in respect of the
Junior Indebtedness at any time after a Senior Mortgagee has given notice to the Owner and the Fourth Mortgagee of the occurrence of an event of default (howsoever described in the relevant Senior Loan Agreement); and
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4
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3.3.2
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a Mandatory Prepayment provided that a Mandatory Prepayment may not be made unless, at the relevant time, (x) the lenders under each of the Senior Loan Agreements
receive evidence satisfactory to them from NCLC that (after giving effect to any contributions from NCLC) the Owner and Norwegian Jewel Limited will be able to meet their respective obligations for the next twelve (12) months under the Senior
Loan Agreement referred to in Schedule 1 and the Senior Loan Agreement referred to in Schedule 2, Part III if the Mandatory Prepayment is made and (y) the Senior Mortgagees so agree in accordance with the Supplemental Deeds (if applicable).
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3.4
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The Fourth Mortgagee undertakes to hold all sums received by it under or pursuant to the Junior Security Documents (other than sums payable to it, or which it is
permitted to receive, pursuant to this Deed) on trust for the Senior Mortgagees to be applied by the Senior Mortgagees:
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3.4.1
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firstly in or towards payment of the Senior Indebtedness; and
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3.4.2
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secondly by way of payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness as more particularly described in Clause 8.2.3.
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3.5
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If an Event of Default (as defined in any of the Senior Loan Agreements) shall occur, the relevant Senior Mortgagee shall, as soon as is reasonably practicable after
becoming aware of the same, advise the Fourth Mortgagee of the same.
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3.6
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If an Event of Default (as defined in the Junior Loan Agreement) shall occur, the Fourth Mortgagee shall, as soon as is reasonably practicable after becoming aware of
the same, advise the Senior Mortgagees of the same.
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3.7
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Any certificate or statement signed by an authorised signatory of a Senior Mortgagee purporting to show the amount of the relevant Senior Indebtedness (or any part of
the relevant Senior Indebtedness) or any other amount referred to in any of the Senior Security Documents shall, save for manifest error or on any question of law, be conclusive evidence as against the Owner and the Fourth Mortgagee of that amount.
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3.8
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For the avoidance of doubt the application of monies received by a Senior Mortgagee in relation to the Senior Indebtedness shall be governed and regulated by the Prior
Co-ordination Deeds.
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4.1
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The Fourth Mortgagee agrees that the Senior Security Documents shall throughout the Security Period constitute a continuing security for the whole of the Senior
Indebtedness, which security shall be senior in priority to the security constituted by the Junior Security Documents, notwithstanding that any of the Senior Indebtedness may have arisen after the execution and/or registration of any of the Junior
Security Documents and notwithstanding any fluctuations in the amount of the Senior Indebtedness.
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4.2
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The Fourth Mortgagee acknowledges the obligation of the Owner to satisfy the marginal security covenant contained in the Senior Loan Agreement referred to in
Schedule 1 and irrevocably consents to the granting of the further security referred to in that clause and irrevocably acknowledges that any further security granted pursuant to that clause will automatically form part of the Senior Security
Documents and be subject to all the terms of this Deed applicable to the Senior Security Documents (including, without limitation, Clause 4.1).
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5
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5
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Covenants of the Fourth Mortgagee
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5.1
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The Fourth Mortgagee covenants with the Senior Mortgagees that during the Security Period:
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5.1.1
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irrespective of its legal rights, and subject to Clause 5.2, it will not arrest, take possession of, appoint any receiver in respect of, manage or sell the Vessel with
or without judicial proceedings, or take any steps to enforce any of its rights under or pursuant to the Junior Security Documents without having first either paid to the Senior Mortgagees the whole of the Senior Indebtedness or obtained the prior
written consent of the Senior Mortgagees in accordance with the Supplemental Deeds (if applicable);
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5.1.2
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it will not take any proceedings to place the Owner into liquidation, administration or receivership nor take any analogous steps without having first either paid to
the Senior Mortgagees the whole of the Senior Indebtedness or obtained the prior written consent of the Senior Mortgagees in accordance with the Supplemental Deeds (if applicable); and
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5.1.3
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it will not contest nor attempt to contest the security constituted by, or any of the rights of any Senior Mortgagee or any party for which a Senior Mortgagee is
trustee under or pursuant to, the Senior Security Documents,
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PROVIDED THAT
nothing in this Clause 5.1
shall prevent the Fourth Mortgagee from filing any action or proceedings necessary for the preservation of its rights, or to avoid the loss of or extinction of any of its rights, nor from demanding payment of any of the Junior Indebtedness or
supporting any proceedings arising from or relating to the arrest or detention of the Vessel (whether at the instigation of the Senior Mortgagees or any other person) with a view (in each case) to substantiating, preserving or protecting its
interest as fourth mortgagee of the Vessel and/or fourth priority assignee of the Assigned Property, but in any such case the Fourth Mortgagee shall give the earliest possible notice to the Senior Mortgagees of its intention to take such action and
shall comply with all requirements of the Senior Mortgagees with respect to the preservation of the Senior Mortgagees’ rights as first priority, second priority and third priority (respectively) mortgagee of the Vessel and as first priority,
second priority and third priority (respectively) assignee of the Assigned Property (which shall include the cessation of, or withdrawal by the Fourth Mortgagee from, any proceedings in the event that the Senior Mortgagees so require).
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5.2
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The Fourth Mortgagee covenants with the Senior Mortgagees that during the Security Period:
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(a)
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it will procure that there are no amendments, supplements or replacements made to any of the Junior Security Documents which would increase the Euro
maximum principal amount of the Junior Loans under the Junior Loan Agreement (or the Dollar equivalent thereof except as provided for by the Junior Loan Agreement as at the date of this Deed) or would increase the margin under the Junior Loan
Agreement by more than [*] per annum without in either case the prior written consent of the First Mortgagee and
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6
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provided that if such increase were made (i) no provision of a Senior Loan Agreement would be breached and (ii) the Senior Security Documents or the security and other rights
constituted and conferred on any Senior Mortgagee by the Senior Security Documents would not, or may not, be prejudiced; and
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(b)
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it will procure that no parties to the Junior Loan Agreement shall seek to secure the payment of any amount (other than an amount due pursuant to the Junior Loan
Agreement) by the Junior Security Documents; and
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(c)
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subject to the proviso in Clause 5.1, it shall not take any action or refrain from taking any action as a result of which the Senior Security Documents or the security
and other rights constituted and conferred on any Senior Mortgagee by the Senior Security Documents are, or may be, prejudiced.
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6
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Notice to Third Parties
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The Fourth Mortgagee undertakes to the Senior Mortgagees that the Fourth Mortgagee will not at any time during the Security Period give
any notice to any third party inconsistent with the rights and powers of the Senior Mortgagees under or pursuant to the Senior Security Documents. In particular, but without limitation, any notice of the assignment by the Owner to the Fourth
Mortgagee of any of the Assigned Property, and any loss payable clause in favour of the Fourth Mortgagee endorsed on any of the Insurances, shall be expressed as being subject to the prior rights of the Senior Mortgagees as first, second and third
assignee respectively and shall be approved by the Senior Mortgagees prior to being given to any third party or endorsed on any of the Insurances.
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7.1
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If the Senior Mortgagees decide (in their sole and absolute discretion) to exercise their power of sale of the Vessel, or if the Owner (with the prior consent of the
Senior Mortgagees) wishes to sell the Vessel, the Fourth Mortgagee agrees to co-operate fully with the Senior Mortgagees (acting in accordance with the Prior Co-ordination Deeds) and the Owner in connection with that sale by (without limitation)
executing all documents required by the Senior Mortgagees not later than the date of completion of the sale to enable the Senior Mortgagees or the Owner to transfer title in the Vessel to the purchaser free of all encumbrances, debts and liens in
favour of the Fourth Mortgagee.
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7.2
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The Senior Mortgagees will give the Fourth Mortgagee reasonable prior notice of any intended sale of the Vessel and a further notice when the price and terms of sale
have been agreed in outline but before any binding agreement for the sale has been entered into. The Fourth Mortgagee will within five (5) Business Days from the date of such further notice:
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7.2.1
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give its consent to the sale at the agreed price and on the agreed terms; or
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7.2.2
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pay to the relevant Senior Mortgagee a sum equal to the lower of the agreed sale price of the Vessel and the amount of the Senior Indebtedness.
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On receipt of payment in full of the sum referred to in Clause 7.2.2 the Senior Mortgagees will at the
expense of the Fourth Mortgagee procure the assignment or transfer by the Senior Mortgagees to or to the order of the Fourth Mortgagee of their rights under the Senior Security Documents.
7
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7.3
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If the Senior Mortgagees do not receive the consent or payment required by Clause 7.2 within the time stipulated by Clause 7.2 the Fourth Mortgagee will be
deemed to have given its consent to the proposed sale.
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7.4
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At or before the time of delivery of the Vessel to any purchaser pursuant to Clause 7.2, notwithstanding Clause 7.1, the Fourth Mortgagee will deliver to the
Senior Mortgagees all other documents required by the Senior Mortgagees in recordable form for registration (if necessary) to enable the Senior Mortgagees and/or the Owner to provide the purchaser with evidence that the Vessel is free of all
encumbrances, debts and liens in favour of the Fourth Mortgagee.
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7.5
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The proceeds of any sale of the Vessel by the Senior Mortgagees or by the Owner shall be held in trust by the Senior Mortgagees to be applied as follows:
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7.5.1
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first, in or towards reimbursement of the expenses of the Senior Mortgagees in connection with the sale, including claims ranking in priority to the claims of the
Senior Mortgagees and other costs and claims necessary in the sole and absolute opinion of the Senior Mortgagees for the finalisation of the sale and collection of the sale proceeds;
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7.5.2
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secondly, in or towards payment of the Senior Indebtedness;
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7.5.3
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thirdly, by payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness; and
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7.5.4
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fourthly, by payment to the Owner and/or to anyone else entitled to them.
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8.1
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The parties to this Deed agree that the proceeds of the Insurances shall be applied in accordance with the loss payable clause(s) endorsed on the Insurances from time
to time.
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8.2
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All proceeds of the Insurances received by the Senior Mortgagees shall be held in trust by the Senior Mortgagees to be applied as follows:
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8.2.1
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first, in or towards reimbursement of the expenses of the Senior Mortgagees in connection with the collection of the proceeds;
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8.2.2
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secondly, by application in or towards payment of the Senior Indebtedness or otherwise in accordance with the Senior Security Documents;
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8.2.3
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thirdly, by payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness or otherwise in accordance with the Junior Security
Documents; and
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8.2.4
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fourthly, by payment to the Owner and/or to anyone else entitled to them.
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9
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Payment of Junior Indebtedness
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Promptly following payment to the Fourth Mortgagee of the full amount of the Junior Indebtedness the Fourth Mortgagee will do whatever is necessary to discharge the Junior Security Documents and to
release the Owner from any further obligations under or pursuant to the Junior Security Documents.
8
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10
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Senior Mortgagees’ Rights
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10.1
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Subject to the Prior Co-ordination Deeds, any Senior Mortgagee may at any time and from time to time without prejudicing its rights under or pursuant to this Deed or
the Senior Security Documents and without consulting with or obtaining the consent of the Fourth Mortgagee:
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10.1.1
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amend, supplement or replace any of the Senior Security Documents or agree to do so (other than any amendment which would increase the maximum principal amount of any
loan under a Senior Loan Agreement in respect of which the consent of the Fourth Mortgagee shall be required);
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10.1.2
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(subject to Clause 11.2), assign, novate, transfer or grant participations in the Senior Indebtedness or its rights under or pursuant to the Senior Security Documents;
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10.1.3
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allow to the Owner or any other person time or indulgence (including, without limitation, allowing delayed repayments under the relevant Senior Loan Agreement);
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10.1.4
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renew, vary, release or refrain from enforcing or exercising its rights under the Senior Security Documents; or
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10.1.5
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compound with the Owner.
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10.2
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No failure to exercise, nor delay in exercising, on the part of a Senior Mortgagee, any right or remedy under or pursuant to any of the Senior Security Documents, nor
any actual or alleged course of dealing between a Senior Mortgagee and the Owner, shall operate as a waiver of, or acquiescence in, any default on the part of the Owner unless expressly agreed to in writing by the Senior Mortgagee, nor shall any
single or partial exercise by a Senior Mortgagee of any right or remedy preclude any other or further exercise of that right or remedy, or the exercise by the Senior Mortgagee of any other right or remedy.
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11.1
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The Fourth Mortgagee shall not assign nor transfer any of its right, title or interest in any of the Junior Security Documents without, in each case, the Fourth
Mortgagee having first procured that any such assignee or transferee will comply with, agree to be bound by and perform all of the obligations of the Fourth Mortgagee under this Deed.
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11.2
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None of the Senior Mortgagees shall assign nor transfer any of its right, title or interest in any of the Senior Security Documents without that Senior Mortgagee having
first procured that any such assignee or transferee will comply with, agree to be bound by and perform all of the obligations of that Senior Mortgagee under this Deed.
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12
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Consents and Approvals
|
Where any act requires the consent or approval of the Senior Mortgagees under the terms of any of the Senior Security Documents and the
same or a similar act requires the consent or approval of the Fourth Mortgagee under any of the Junior Security Documents, the consent or approval of the Senior Mortgagees shall be deemed also to constitute the consent or approval of the Fourth
Mortgagee.
9
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
If, at
any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any court, then from time to time the Owner and the Fourth Mortgagee will each promptly, on
demand by the Senior Mortgagees and at the cost of the Owner, execute and deliver to the Senior Mortgagees, or procure the execution and delivery to the Senior Mortgagees of, such further documents as in the opinion of the Senior Mortgagees are
necessary to give effect to the terms of this Deed.
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15.1
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The rights of the Senior Mortgagees under or pursuant to this Deed shall not be affected by any change in the constitution of the Owner or by the liquidation,
bankruptcy or insolvency of the Owner.
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15.2
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No variation or amendment of this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
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15.3
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Other than the parties set out in Schedule 1, Schedule 2, Schedule 3 and Schedule 4, a person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.
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16.1
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Any communication to be made under or in connection with this Deed shall be made in writing in the English language and sent by fax or letter addressed:
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16.1.1
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in the case of a Senior Mortgagee to it at its address as set out in Schedule 1, Schedule 2 or Schedule 3 of this Deed (as the case may be); and
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16.1.2
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in the case of the Fourth Mortgagee to it at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany (marked for the attention of Claudia Wenzel / Mr Christian
Schweiger at fax no: +49 69 7431 3768 / 2944 and email: claudia.wenzel@kfw.de / christian.schweiger@kfw.de); and
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16.1.3
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in the case of the Owner to it at c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the
Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57
th
Street, 43
rd
Floor, New York, NY 10019,
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10
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United States of America (marked for the attention of Mr Steve Martinez) (fax no: +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117
(marked for the attention of the Legal Department) with a copy to (i) the Investors c/o Apollo Management, LP at +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and (ii) O’Melveny & Myers LLP at fax
no. +1 212 326 2061 (marked for the attention of Mr Brad Finkelstein));
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or to such other
address and/or fax number as any Party may designate for itself by written notice to the others provided that if the copy of any communication is not received by the addressee, it shall not affect the deemed making or delivery of the communication.
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16.2
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Any communication made pursuant to Clause 16.1 will only be effective:
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16.2.1
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if by way of fax, when received in legible form; or
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16.2.2
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if by letter, when it has been left at the relevant address or five (5) days after being deposited in the post postage prepaid in an envelope addressed to the
relevant address.
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This Deed
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 Deed.
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18.1
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This Deed and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with English law.
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18.2
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For the exclusive benefit of the Senior Mortgagees, the parties to this Deed irrevocably agree that the courts of England are to have exclusive jurisdiction to settle
any dispute:
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18.2.1
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arising from or in connection with this Deed; or
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18.2.2
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relating to any non-contractual obligations arising from or in connection with this Deed and that any proceedings may be brought in those courts.
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18.3
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Nothing contained in this Clause shall limit the right of the Senior Mortgagees to commence any proceedings under or pursuant to this Deed in any other court of
competent jurisdiction nor shall the commencement of any proceedings against the Owner or the Fourth Mortgagee in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
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18.4
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The Owner and the Fourth Mortgagee each irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any
court referred to in this Clause and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding
on it and may be enforced in the courts of any other jurisdiction.
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11
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18.5
|
Without prejudice to any other mode of service allowed under any relevant law:
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18.5.1
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the Owner irrevocably appoints EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP as its agent for service of process in
relation to any proceedings before the English courts;
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|
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18.5.2
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the Fourth Mortgagee irrevocably appoints its London office presently at 29th Floor, Abbey Business Centre, 30 St Mary Axe, London EC3A 8EP as its agent for
service of process in relation to any proceedings before the English courts; and
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18.5.3
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the Owner and the Fourth Mortgagee each agrees that failure by a process agent to notify it of the process will not invalidate the proceedings concerned.
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IN WITNESS
of which this Deed has been duly executed and delivered the day and year first before written.
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SIGNED
and
DELIVERED
as a
DEED
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)
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by
PRIDE OF HAWAII, LLC
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)
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acting by
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)
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)
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its duly authorised attorney-in-fact
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)
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)
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in the presence of:
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)
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SIGNED
and
DELIVERED
as a
DEED
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)
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by
HSBC BANK PLC
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)
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as the First Mortgagee
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)
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acting by Danae Zoi Mariel Ugolini
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)
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)
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its duly authorised attorney-in-fact
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)
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)
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in the presence of:
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)
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12
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SIGNED
and
DELIVERED
as a
DEED
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)
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by
DnB NOR BANK ASA
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)
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as the Second Mortgagee
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)
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acting by Danae Zoi Mariel Ugolini
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)
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)
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its duly authorised attorney-in-fact
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)
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)
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in the presence of:
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)
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SIGNED
and
DELIVERED
as a
DEED
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)
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by
DnB NOR BANK ASA
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)
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as the Third Mortgagee
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)
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acting by Danae Zoi Mariel Ugolini
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)
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)
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its duly authorised attorney-in-fact
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)
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)
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in the presence of:
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)
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SIGNED
and
DELIVERED
as a
DEED
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)
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by
KFW IPEX-BANK GMBH
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)
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as the Fourth Mortgagee
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)
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acting by
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)
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)
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its duly authorised
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)
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)
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in the presence of:
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)
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13
SCHEDULE 1
Senior Security Documents
First Priority Mortgage and Collateral Deed of Covenants each
dated 10 February 2008
First Assignment of Insurances dated 19 April 2006
First Charter and/or Earnings Assignments dated 18 October 2004 and 10 February 2008
Deeds of Assignment and Subordination dated 10 February 2008 and 16 June 2008
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
14
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs
Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
15
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
16
SCHEDULE 2
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Second Priority Mortgage and Collateral Deed of Covenants each dated 2 April 2009
Second Assignment of Insurances dated 2 April 2009
Second Charter and Earnings Assignment
dated 2 April 2009
Second Assignment and Subordination dated 2 April 2009
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
17
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
18
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global
Shipping
Domstrasse 18
20095
Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
19
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
|
Email:
|
lam.curacao@dvbbank.com/james.neira@dvbbank.com
|
Part III
USD334,050,000 Secured Loan Agreement dated 20 April 2004
as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
As trustee for:
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
(as trustee and
agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
(as Hermes agent)
20
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
|
Fax:
|
+65 6536 6449/6532 5347
|
|
Attn:
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
21
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
22
SCHEDULE 3
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Third Priority Mortgage and Collateral Deed of Covenants each dated 2 April 2009
Third Assignment of Insurances dated 2 April 2009
Third Charter and Earnings Assignment
dated 2 April 2009
Third Assignment and Subordination dated 2 April 2009
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended
and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
As trustee for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
(as security agent and
agent)
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/
|
|
Email:
|
shipfinance@commerzbank.com
|
23
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND
PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
Attn:
|
Douglas Newton/Russell Parker
|
|
Email:
|
douglas_newton@bankofscotland.co.uk
|
24
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
Fax:
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
Mr Peter-Alexander Wunner/
|
|
Email:
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
michael.mccarthy@unicreditgroup.de
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
Attn:
|
Dr Matthias Fischer
|
|
Email:
|
matthias.fischer@schiffsbank.com
|
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
Attn:
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
oivind.haraldsen@fokus.no/
|
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
Email:
|
carsten.dreyer@hsh-nordbank.com
|
|
Email:
|
frauke.hay@hsh-nordbank.com
|
25
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
Attn:
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
egil.aarrestad@seb.co.uk/
|
|
|
malcolm.stonehouse@seb.co.uk
|
26
SCHEDULE 4
Junior Security Documents
Fourth Priority Mortgage and Collateral Deed of Covenants
Fourth Assignment of Intercompany Charters
Fourth Assignment of Insurances
Fourth Assignment of Earnings
Credit Agreement dated
November 2010, among Pride of Hawaii, LLC as borrower, NCL Corporation Ltd. as guarantor, KfW IPEX-Bank GmbH as facility agent, collateral agent and CIRR agent and the lenders party thereto from time to time for the lesser of:
|
|
(I)
|
10% of the initial construction prices of the New Vessels; and
|
|
|
(II)
|
100% of the total aggregate amounts payable by the Owner to Commerzbank Aktiengesellschaft (the “
Hermes Agent
”) in relation to the Junior Loans in
respect of the Hermes cover for such loans (the “
New Hermes Fees
”);
|
|
|
(II)
|
EUR 3,075,000 provided that such aggregate sum of EUR 126,075,000 is subject to reduction to [*] plus the New Hermes Fees if the said Hermes cover shall so provide; and
|
|
(z)
|
when aggregated with the sum to be borrowed by Norwegian Jewel Limited under a credit agreement of the same date as, and on similar terms to, the credit agreement
referred to above, USD 224,770,000 (or such higher Dollar cap as may be later agreed between the lead arrangers of the Junior Loans and NCLC) provided that the maximum amount of the Junior Loans available to the Owner for drawing shall not exceed
USD 94,576,192.83 unless the Dollar cap of USD 224,770,000 is so increased,
|
to finance in part the acquisition of the New
Vessels by two (2) wholly owned subsidiaries of NCLC and related fees.
Trustee
KFW IPEX-BANK GMBH
Palmengartenstrasse
5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
27
As trustee for:
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
(an affiliate of Commerzbank AG)
Global Shipping
Domstrasse 18
D - 20095 Hamburg
Germany
Telephone: +49 40 3769 9646/9647
Facsimile: +49 40 3769 9649
|
Attn:
|
Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
marcus.weber@commerzbank.com/anne.randewig@commerzbank.com
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW IPEX-BANK
GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDEA BANK NORGE ASA
Middelthuns gate
17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
28
EXHIBIT N
Dated [
—
] 2010
FORM OF JADE SECURITY TRUST DEED
between
KFW IPEX-BANK GMBH
as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate Collateral Agent
KFW IPEX-BANK GMBH
as Facility Agent
PRIDE OF HAWAII, LLC
as Company
NCL CORPORATION LTD.
as Parent
and
OTHERS
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
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|
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Page
|
|
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1.
|
|
DEFINITIONS AND INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
|
6
|
|
|
3.
|
|
APPLICATION OF PROCEEDS
|
|
|
7
|
|
|
4.
|
|
SECURED CREDITORS’ UNDERTAKINGS
|
|
|
9
|
|
|
5.
|
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
|
10
|
|
|
6.
|
|
AGENT’S RIGHTS AND DUTIES
|
|
|
11
|
|
|
7.
|
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
|
19
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|
|
8.
|
|
CHANGE OF PARTIES
|
|
|
21
|
|
|
9.
|
|
FEES AND EXPENSES
|
|
|
21
|
|
|
10.
|
|
AMENDMENTS AND RELEASES
|
|
|
22
|
|
|
11.
|
|
TERMINATION OF THE TRUSTS
|
|
|
23
|
|
|
12.
|
|
REMEDIES AND WAIVERS
|
|
|
23
|
|
|
13.
|
|
ADDITIONAL PROVISIONS
|
|
|
23
|
|
|
14.
|
|
NOTICES
|
|
|
25
|
|
|
15.
|
|
GOVERNING LAW AND JURISDICTION
|
|
|
27
|
|
|
16.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
28
|
|
|
SCHEDULE 1 ORIGINAL SECURED CREDITORS
|
|
|
29
|
|
|
SCHEDULE 2 FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
|
|
30
|
|
THIS DEED
is made on
2010
BETWEEN
:
|
(1)
|
PRIDE OF HAWAII, LLC
, a Delaware limited liability company with its registered office at Corporate Trust Center, 1209 Orange Street, Wilmington, Delaware 19801,
United States of America (the “
Company
”);
|
|
(2)
|
NCL CORPORATION LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”
and together with the Company, the “
Credit Parties
”);
|
|
(3)
|
The financial institutions listed in Schedule 1 as Secured Creditors (together with the Collateral Agent and the Delegate Collateral Agent, the “
Original
Secured Creditors
”);
|
|
(4)
|
KFW IPEX-BANK GMBH
as facility agent for the Lender Creditors (the “
Facility Agent
”);
|
|
(5)
|
KFW IPEX-BANK GMBH
as trustee for the Secured Creditors (the “
Collateral Agent
”, which expression includes any additional or successor
Collateral Agent appointed pursuant to and in accordance with the terms of this Deed); and
|
|
(6)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as trustee for the Secured Creditors (the “
Delegate Collateral Agent
”, which expression includes any
additional or successor Delegate Collateral Agent appointed pursuant to and in accordance with the terms of this Deed).
|
RECITALS:
|
(A)
|
The Lenders are willing to make certain credit facilities available to the Company on the terms and subject to the conditions set out in the Credit Agreement, one of
those conditions being that the Company enters into this Deed.
|
|
(B)
|
The Collateral Agent holds the Transaction Security (excluding the KfW Assignments) on trust for itself and the other Secured Creditors on the terms of this Deed.
|
|
(C)
|
The Delegate Collateral Agent holds the KfW Assignments on trust for itself and the other Secured Creditors on the terms of this Deed.
|
IT IS AGREED
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this Deed
the following terms have the meanings given to them in this Clause 1.1.
“
Agents
” means the Collateral Agent
and the Delegate Collateral Agent.
“
Credit Agreement
” means the €126,075,000 credit agreement made
between the Parent, the Company, the Lenders and others effective 18 November 2010.
“
Credit Document
Obligations
” has the meaning given in the Credit Agreement.
“
Delegate
” means any delegate, agent or
attorney appointed by the Collateral Agent, pursuant to and in accordance with the terms of this Deed.
“
Discharge
Date
” means the date on which all the Secured Obligations have been fully discharged and none of the Lender Creditors is under any obligation (whether actual or contingent, other than (i) contingent obligations for which no claim has
been made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) to make advances or provide other financial accommodation to any of the Credit Parties
under the Credit Documents.
“ECF Vessel 1 Assignment of Contracts
” means the “Assignment of
Contracts” under and as defined in the Breakaway One Facility.
“ECF Vessel 1 Assignment of KfW Refund
Guarantees”
means the “Assignment of KfW Refund Guarantees” under and as defined in the Breakaway One Facility.
“ECF Vessel 2 Assignment of Contracts
” means the “Assignment of Contracts” under and as defined in the Breakaway Two Facility.
“ECF Vessel 2 Assignment of KfW Refund Guarantees
” means the “Assignment of KfW Refund Guarantees” under and as
defined in the Breakaway Two Facility.
“
Jade Shared Security
” means the assets which are expressed to be the
subject of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Jade Shared Security Documents.
“Jade Shared Security Documents
” means
|
|
(a)
|
the Assignment of Charter and Earnings;
|
|
|
(b)
|
the Charterer’s Assignment and Subordination; and
|
|
|
(c)
|
the Assignment of Insurances.
|
“
KfW Assignments
” means (a) the Term Loan Vessel 1 Assignment of KfW Refund Guarantees and (b) the Term Loan
Vessel 2 Assignment of KfW Refund Guarantees.
“
Other Obligations
” has the meaning given in the Credit
Agreement.
“
Party
” means a party to this Deed.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Deed or any statute, by
a court or otherwise) of all or any of the Trust Property and the Trust Property Delegated and shall, where permitted by law, include an administrative receiver.
2
“
Secured Creditors
” means (a) the Original Secured Creditors,
(b) any Receiver or Delegate, (c) any additional or successor Agents appointed pursuant to and in accordance with the terms of this Deed, (d) any Term Loan Hedging Creditor that has acceded to this Deed by delivery of a Secured
Creditor Accession Undertaking to the Collateral Agent and (e) any successor Facility Agent or permitted assignee, permitted transferee of a Lender or permitted transferee of a Term Loan Hedging Creditor that has acceded to this Deed by
(i) delivery of a Secured Creditor Accession Undertaking to the Collateral Agent or (ii) delivery of a Transfer Certificate or Assignment Agreement to the Facility Agent.
“
Secured Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 2 (
Form of
Secured Creditor Accession Undertaking
) of this Deed.
“
Secured Obligations
” means the Credit Document
Obligations and the Other Obligations.
“
Security
” means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“
Term
Loan Hedging Agreements
” means any Term Loan Interest Rate Protection Agreement and any Term Loan Other Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means each Lender or affiliate thereof that may at any time and from time to time enter
into one or more Term Loan Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 8.3 (
New Hedging Creditor
), even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason,
together with such Lender’s or affiliate’s successors and assigns, if any.
“
Term Loan Interest Rate
Protection Agreement
” means Interest Rate Protection Agreement as defined in the Credit Agreement.
“
Term Loan
Collateral
” means the Collateral as defined in the Credit Agreement.
“
Term Loan Other Hedging
Agreement
” means “Other Hedging Agreement” as defined in the Credit Agreement.
“
Term Loan Vessel 1
Assignment of Contracts
” means the “Vessel 1 Assignment of Contracts” as defined in the Credit Agreement.
“
Term Loan Vessel 1 Assignment of KfW Refund Guarantees
” means the “Vessel 1 Assignment of KfW Refund
Guarantee” as defined in the Credit Agreement.
“
Term Loan Vessel 2 Assignment of Contracts
” means the
“Vessel 2 Assignment of Contracts” as defined in the Credit Agreement.
“
Term Loan Vessel 2 Assignment of KfW
Refund Guarantees
” means the “Vessel 2 Assignment of KfW Refund Guarantee” as defined in the Credit Agreement.
3
“
Transaction Security
” means the security created or expressed to be
created in favour of the relevant Agent pursuant to the Term Loan Vessel 1 Assignment of Contracts, the Term Loan Vessel 2 Assignment of Contracts, the Jade Shared Security Documents, the KfW Assignments and any other agreement which is governed by
the laws of England and Wales and which creates or purports to create Security in favour of the Secured Creditors.
“
Trust Property
” means all rights, interests, benefits and other property comprised in the Transaction Security
(excluding the KfW Assignments) and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Collateral Agent under, pursuant to or in connection with this Deed or any Credit Document to which the Collateral Agent is a party;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Collateral Agent (other than any made or granted solely for its own
benefit) made or granted in or pursuant to any of the Credit Documents to which the Collateral Agent is a party;
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|
|
(c)
|
any sum which is received or recovered by the Collateral Agent under, pursuant to or in connection with any of the Credit Documents or the exercise of any of the
Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Collateral Agent upon trust on the terms of this Deed or any of the Credit Documents to
which the Collateral Agent is a party; and
|
|
|
(d)
|
all income and other sums at any time received or receivable by the Collateral Agent in respect of the other Trust Property or any part thereof.
|
“
Trust Property Delegated
” means all rights, interests, benefits and other property comprised
in the KfW Assignments and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Delegate Collateral Agent under, pursuant to or in connection with this Deed or the KfW Assignments;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Delegate Collateral Agent (other than any made or granted solely for
its own benefit) made or granted in or pursuant to any of the KfW Assignments;
|
|
|
(c)
|
any sum which is received or recovered by the Delegate Collateral Agent under, pursuant to or in connection with any of the KfW Assignments or the exercise of any of
the Delegate Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Delegate Collateral Agent upon trust on the terms of this Deed or any the KfW
Assignments; and
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4
|
|
(d)
|
all income and other sums at any time received or receivable by the Delegate Collateral Agent in respect of the other Trust Property Delegated or any part thereof.
|
“
Trustee Acts
” means the Trustee Act 1925 and the Trustee Act 2000.
“
Vessel 1 Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Vessel 1 Shared Security Documents.
“
Vessel 1 Shared
Security Documents
” means:
|
|
(a)
|
the Term Loan Vessel 1 Assignment of Contracts;
|
|
|
(b)
|
the Term Loan Vessel 1 Assignment of KfW Refund Guarantees;
|
|
|
(c)
|
the ECF Vessel 1 Assignment of Contracts; and
|
|
|
(d)
|
the ECF Vessel 1 Assignment of KfW Refund Guarantees.
|
“
Vessel 2 Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the
Vessel 2 Shared Security Documents.
“
Vessel 2 Shared Security Documents
” means:
|
|
(a)
|
the Term Loan Vessel 2 Assignment of Contracts;
|
|
|
(b)
|
the Term Loan Vessel 2 Assignment of KfW Refund Guarantees;
|
|
|
(c)
|
the ECF Vessel 2 Assignment of Contracts; and
|
|
|
(d)
|
the ECF Vessel 2 Assignment of KfW Refund Guarantees.
|
Unless
this Deed provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Deed.
|
1.3
|
References to Agreements
|
Unless otherwise stated, any reference in this Deed to any agreement or document (including any reference to this Deed or any other Credit
Document or to any agreement or document entered into pursuant to or in accordance with such agreement or document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, restated, varied, novated or supplemented from time to time; and
|
|
|
(b)
|
any agreement or document whereby such agreement or document is so amended, restated, varied, novated or supplemented or which is entered into pursuant to or in
accordance with such agreement or document.
|
5
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Deed to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
|
|
(a)
|
A person which is not a party to this Deed (a “
third party
”) shall have no rights to enforce the provisions of this Deed save for those rights it would
have had if the Contracts (Rights of Third Parties) Act 1999 had not come into effect provided that each of Clause 5.1 (
Credit Parties’ Indemnity to Agents
), Clause 9.1 (
Transaction and Enforcement Expenses
) and Clause 13.3
(
Currency Indemnity
) shall be enforceable by any third party referred to in such clause as if such third party were a party to this Deed.
|
|
|
(b)
|
The Parties to this Deed may vary or rescind this Deed without the consent of any third party.
|
|
1.7
|
Clause and Schedule Headings
|
|
|
(a)
|
Unless otherwise stated, any reference in this Deed to a Clause or a Schedule shall be construed as a reference to a clause of or a schedule to this Deed.
|
|
|
(b)
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Deed.
|
|
2.
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
2.1
|
Declaration of Trust by Collateral Agent
|
To the extent the Trust Property is not transferred, charged or granted to the Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of Clause 2.3 (
Non-Trust
Jurisdictions
), the Collateral Agent declares itself trustee of the Trust Property to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the terms and subject to the conditions set out in this
Deed.
|
2.2
|
Declaration of Trust by Delegate Collateral Agent
|
To the extent the Trust Property Delegated is not transferred, charged or granted to the Delegate Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of
Clause 2.3 (
Non-Trust Jurisdictions
), the Delegate Collateral Agent declares itself trustee of the Trust Property Delegated to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the
terms and subject to the conditions set out in this Deed.
6
|
2.3
|
Non-Trust Jurisdictions
|
It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed
to be created by this Deed, the relationship of the Secured Creditors to the Agents shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Deed shall have
full force and effect between the Parties.
Each
Credit Party hereby covenants with the Agents as trustees for the Secured Creditors that on demand by either of the Agents such Credit Party shall discharge all obligations which are then due and payable and which such Credit Party may at any time
owe to the Agents (whether for its own account or as trustee for the Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they
act) under or pursuant to the Credit Documents including any liability in respect of any further advances made under the Credit Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or as surety or in some other capacity) and each Credit Party shall pay to the Agents when due and payable every sum at any time owing, due or incurred by such Credit Party to the Agents (whether for its own account or as trustee for the
Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they act) in respect of any such liabilities.
|
3.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
All moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral Agent pursuant
to the Term Loan Vessel 1 Assignment of KfW Refund Guarantees) shall be applied by the Collateral Agent (a) with respect to the Vessel 1 Shared Security only (to the extent that the Tranche A Intercreditor Agreement is operative), in accordance
with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Tranche A Intercreditor Agreement and (b) with respect to the Vessel 1 Shared Security (to the extent that the Tranche A Intercreditor Agreement is
inoperative) and any other Security (other than Vessel 2 Shared Security and Jade Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05 (
Application of Proceeds
) of the Credit
Agreement.
|
|
|
(b)
|
All moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral
Agent pursuant to the Term Loan Vessel 2 Assignment of KfW Refund Guarantees) shall be applied by the Collateral Agent (a) with respect to the Vessel 2 Shared Security only (to the extent that the Tranche B Intercreditor Agreement is
operative), in accordance with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Tranche B Intercreditor
|
7
|
|
Agreement and (b) with respect to the Vessel 2 Shared Security (to the extent that the Tranche B Intercreditor Agreement is inoperative) and any other Security (other than Vessel 1 Shared
Security and Jade Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05 (
Application of Proceeds
) of the Credit Agreement.
|
|
|
(c)
|
All moneys from time to time received or recovered by the Agents shall be applied by the Collateral Agent (a) with respect to the Jade Shared Security only (to the
extent that the Jade Intercreditor Agreement is operative), in accordance with the order of priority set out in clauses 3.4, 7.5 and 8 of the Jade Intercreditor Agreement and (b) with respect to the Jade Shared Security (to the extent that the
Jade Intercreditor Agreement is inoperative) and any other Security (other than Vessel 1 Shared Security and Vessel 2 Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05 (
Application
of Proceeds
) of the Credit Agreement.
|
|
3.2
|
Investment of Proceeds
|
|
|
(a)
|
Pending its distribution under Clause 3.1 (
Order of Application
) and without responsibility for any loss or any reduction in return which may result from its so
doing, the Collateral Agent may credit any sum received, recovered or held by it in respect of the Trust Property and/or the Trust Property Delegated to such suspense or other account as the Collateral Agent thinks fit or invest or place on deposit
such sum in the name of or under the control of the Collateral Agent in any investment for the time being authorised by English law for the investment by trustees of trust moneys or with such bank or financial institution (including the Collateral
Agent) as the Collateral Agent may think fit.
|
|
|
(b)
|
The Collateral Agent may at any time in its absolute discretion vary, exchange, transfer or transpose any such investments or deposits for or into other such
investments or deposits without being under any obligation or duty to diversify the same. Any investment made by the Collateral Agent may, at its discretion, be made or retained in the name of a nominee.
|
In
order to apply any sum held or received by the Collateral Agent or a Receiver in or towards payment of the Secured Obligations, the Collateral Agent or such Receiver may purchase an amount in another currency and the rate of exchange to be used
shall be that at which, at such time as it considers appropriate, the Collateral Agent or such Receiver is able to effect such purchase.
The
Collateral Agent shall be entitled to set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any
distribution or payment made by it under this Deed, and to pay all taxes which may be assessed against it in respect of any of the Trust Property or Trust Property Delegated, as applicable, or as a consequence of performing its duties, or by virtue
of its acting in
8
its capacity as Collateral Agent under any of the Credit Documents or otherwise (other than in connection with its remuneration for performing its duties under this Deed).
|
3.5
|
Discharge of Secured Obligations
|
|
|
(a)
|
Any payment to be made in respect of the Secured Obligations by the Collateral Agent pursuant to (i) paragraph (c) of Clause 7.1 (
Application of
Proceeds
) of either ECF Intercreditor Agreement or (ii) paragraph (ii) of Section 4.05 (
Application of Proceeds
) of the Credit Agreement shall be made to the Facility Agent (on behalf of the Lenders and the other Secured
Creditors (to the extent applicable)) and any payment so made shall to the extent of such payment be a good discharge to the Agents.
|
|
|
(b)
|
The Credit Parties hereby agree that any sums due in respect of the Secured Obligations to any Secured Creditor shall only be discharged to the extent that such Secured
Creditor has received such sums in the currency in which such sums are due under the Credit Documents.
|
|
|
(a)
|
If any Secured Creditor has received an amount as a result of the enforcement of the Transaction Security and the Collateral Agent and/or the Delegate Collateral Agent
is subsequently required to pay an amount equal to that amount (a “
Clawback Amount
”) to a liquidator (or any other party) whether pursuant to a court order or otherwise such Secured Creditor will promptly on the request of the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) pay an amount equal to such Clawback Amount to the Collateral Agent and/or the Delegate Collateral Agent (as applicable) for payment to the liquidator (or such other party).
|
|
|
(b)
|
Each Secured Creditor that has received a Clawback Amount shall indemnify the relevant Agent against any and all costs, claims, losses, expenses (including legal fees)
and liabilities together with any VAT thereon which the Collateral Agent and/or the Delegate Collateral Agent (as applicable) may incur with respect to that Clawback Amount otherwise than by reason of the Agent’s own gross negligence or wilful
misconduct.
|
|
4.
|
SECURED CREDITORS’ UNDERTAKINGS
|
Each Secured Creditor gives the undertakings set out in this Clause 4 to each of the other Secured Creditors and acknowledges that the Agents entered into this Deed in reliance on those undertakings.
|
4.1
|
Secured Creditors’ Information
|
The Secured Creditors shall furnish to the Facility Agent, for transmission to the Collateral Agent and/or the Delegate Collateral Agent, such information as the Collateral Agent and/or the Delegate
Collateral Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Collateral Agent and/or the Delegate Collateral Agent to perform its functions as trustee.
9
Each
of the Collateral Agent and the Delegate Collateral Agent alone, in their respective capacities, to the exclusion of the Secured Creditors, shall have power to enforce or have recourse to the Transaction Security and to exercise its rights and
powers pursuant to the Credit Documents.
Without prejudice to any of the provisions of any other Credit Document and to the extent that the Company does not do so on demand or is
not obliged to do so, each Secured Creditor that is a Lender hereby severally agrees to indemnify, rateably in accordance with such Lender’s Commitment, the Collateral Agent and/or the Delegate Collateral Agent (as applicable) (and every
Receiver and Delegate) on demand from and against any action, charge, claim, cost, damage, demand, expense (including legal fees), liability or loss which may be brought, made or preferred against or suffered, sustained or incurred by the Collateral
Agent and/or the Delegate Collateral Agent (as applicable) in complying with any instructions from any of the Secured Creditors or, in the case of the Delegate Collateral Agent, the Collateral Agent or otherwise sustained or incurred by the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) or any Receiver or Delegate in connection with this Deed or any Credit Document except to the extent that the liability or loss arises directly from the Collateral Agent and/or
the Delegate Collateral Agent (as applicable)’s (or, as the case may be, the Receiver’s or the Delegate’s) gross negligence or wilful misconduct.
|
4.4
|
Assignments and Transfers
|
Each Secured Creditor agrees with the Agents that it shall not assign or transfer any of its rights, benefits and/or obligations under the
Credit Agreement unless the person to whom such assignment or transfer is made shall have acceded to this Deed by the delivery to the Agents of a duly completed Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement so
as to ensure that such person shall be bound by the terms and conditions of this Deed as a Secured Creditor.
|
5.
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
5.1
|
Credit Parties’ Indemnity to Agents
|
The Credit Parties shall jointly and severally indemnify and hold harmless the Collateral Agent and the Delegate Collateral Agent and every Receiver and Delegate (“
indemnified parties
”)
on demand from and against any and all costs, claims, losses, expenses (including legal fees) and liabilities (together with any applicable VAT), incurred by any of them in relation to or arising out of:
|
|
(a)
|
the preservation, exercise or enforcement of the Transaction Security;
|
|
|
(b)
|
the exercise of any of the rights, powers, discretions and remedies vested in any of the indemnified parties by the Credit Documents or by law;
|
|
|
(c)
|
any default by any Credit Party in the performance of any of the obligations expressed to be assumed by it in the Credit Documents; or
|
10
|
|
(d)
|
otherwise in relation to any of the Transaction Security or the performance of the terms of this Deed.
|
The Collateral Agent and the Delegate Collateral Agent may, in priority to any payment to the Secured Creditors and on its own behalf or
on behalf of the other indemnified parties, indemnify itself or such other indemnified parties out of the Trust Property and Trust Property Delegated respectively and shall have a lien on the Trust Property and Trust Property Delegated respectively
for all moneys payable under this Clause 5.1.
To the
extent that a Secured Creditor is required to indemnify the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
) as a result of any action which a Credit Party is required to take but does not,
the relevant Credit Party agrees to indemnify each such Secured Creditor on demand against any amount it has paid to the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
).
|
5.3
|
Credit Parties’ Waiver
|
Each of the Credit Parties hereby unconditionally waives, to the extent permitted under applicable law any and all rights it may have to require that the Transaction Security be enforced in any particular
order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security, which is capable of being applied in or towards discharge of any of the Secured
Obligations is so applied.
|
5.4
|
Sums Received by Credit Parties
|
If any of the Credit Parties receives any sum which, pursuant to any of the Credit Documents, should have been paid to the Collateral Agent and/or the Delegate Collateral Agent, that sum shall be held by
that Credit Party for and to the order of the Secured Creditors and shall as soon as practicable be paid to the Collateral Agent for application in accordance with Clause 3.1 (
Order of Application
)).
|
6.
|
AGENT’S RIGHTS AND DUTIES
|
|
6.1
|
Powers and Remuneration
|
|
|
(a)
|
The Agents shall have such rights, powers, authorities and discretions as are (i) conferred on trustees by the Trustee Acts and (ii) by way of supplement to
the Trustee Acts as provided for in this Deed and the Credit Documents.
|
|
|
(b)
|
Between itself and the other Parties, the Collateral Agent shall have full power to determine all questions and doubts arising in relation to any of the provisions of
this Deed or any Credit Document and any such determination shall in the absence of manifest error, be conclusive and shall bind the Agents and the other Parties.
|
|
|
(c)
|
The Agents shall be entitled to such remuneration as it may from time to time agree with the Company with the approval of the Facility Agent.
|
11
|
6.2
|
Instructions for Agents to Act
|
The Agents shall:
|
|
(a)
|
be entitled, in their absolute discretion, to refrain from taking any (or any further) action or exercising any of the Agents’ rights under or in respect of this
Deed or any Credit Document until it has received instructions from the Facility Agent, as to whether (and/or the way in which) such action, right, power, authority or discretion is to be taken or exercised;
|
|
|
(b)
|
except as otherwise provided in this Deed, act in accordance with any instructions given to it by the Facility Agent and shall be entitled to assume that (i) any
instructions received by it from the Facility Agent are duly given by the Facility Agent itself or on behalf of the requisite Lenders and/or other Secured Creditors (if applicable), (ii) all applicable conditions under the Credit Documents for
taking any action it is directed to take have been satisfied and (iii) unless it has received actual notice of their revocation, that any instructions or directions given by the Facility Agent have not been revoked;
|
|
|
(c)
|
be entitled to request instructions or clarification from the Facility Agent as to whether, and in what manner, it should exercise or refrain from exercising its
rights, powers and discretions under this Deed and the Agents may refrain from acting unless and until it has received such instructions or clarification;
|
|
|
(d)
|
be entitled to refrain from acting in accordance with the instructions of the Facility Agent or any other person (including bringing any legal action or proceeding
arising out of or in connection with the Credit Documents) until it has received such indemnification and/or security as it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, expenses, losses
and liabilities which it may incur in taking such action or bringing such legal action or proceedings; and
|
|
|
(e)
|
be entitled to carry out all dealings with the Lenders and/or other Secured Creditors (if applicable) through the Facility Agent and may give to the Facility Agent any
notice or other communication required to be given by the Agents to the Lenders and/or other Secured Creditors (if applicable).
|
|
6.3
|
Action to Protect or Enforce Transaction Security
|
Subject to the provisions of this Clause 6:
|
|
(a)
|
the Agents may, in the absence of any instructions from the Facility Agent to the contrary, take such action in the exercise of any of its duties under the Credit
Documents and this Deed which in its absolute discretion it considers appropriate; and
|
|
|
(b)
|
at any time after receipt by the Agents of notice from the Facility Agent informing the Agents that the Transaction Security has become enforceable and directing the
Agents to exercise all or any of its rights, remedies, powers or discretions under any of the Credit Documents or this Deed, the Agents shall take such action as in its absolute discretion it thinks fit to enforce the Transaction Security.
|
12
|
6.4
|
Agents’ Rights and Discretions
|
The Agents may:
|
|
(i)
|
any communication, certificate, legal opinion or other document believed by it to be genuine and correct and to have been signed by, or with the authority of, the
proper person;
|
|
|
(ii)
|
any statement made by a director, officer, partner or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within
his power to verify; and
|
|
|
(iii)
|
a certificate signed by any one or more persons which, or each of which, is believed by it to be a director or other duly authorised officer of the relevant Party to
the effect that any particular dealing, transaction, step or thing is, in the opinion of the person so certifying, suitable or expedient or as to any other fact or matter upon which the Agents may require to be satisfied and shall not be responsible
for any loss that may be occasioned by its relying on any such certificate;
|
|
|
(b)
|
obtain and pay for such legal or other expert advice or services as it may consider necessary or desirable;
|
|
|
(c)
|
retain for its own benefit, without liability to account to any other person, any fee or other sum received by it for its own account;
|
|
|
(d)
|
in the case of the Collateral Agent only, exercise any of its rights, powers and discretions and perform any of its obligations under this Deed or any of the Credit
Documents through its employees or through paid or unpaid agents, which may be corporations, partnerships or individuals (whether or not lawyers or other professional persons). Any such agent shall be responsible for its own acts and omissions and
subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be responsible for any misconduct or omission on the part of, or be bound to supervise the proceedings or acts of, any such employee or agent (and any such agent
which is engaged in any profession or business shall be entitled to charge and be paid all usual fees, expenses and other charges for its services);
|
|
|
(e)
|
in the case of the Collateral Agent only, at any time and from time to time delegate, whether by power of attorney or otherwise and upon such terms and
conditions (including the power to sub-delegate with the consent of the Collateral Agent) as the Collateral Agent may think fit, to any persons all or any of its rights, powers and discretions under this Deed or under any of the Credit Documents.
Such delegate or sub-delegate shall be responsible for its own acts and omissions and subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be in any way liable or responsible to any person
|
13
|
|
for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate or sub-delegate. Notwithstanding the above and for the avoidance of doubt, the
Collateral Agent shall not be responsible for any acts or omissions, including, without limitation, any acts or omissions caused by the gross negligence or wilful misconduct of the Delegate Collateral Agent;
|
|
|
(f)
|
together with every Receiver, Delegate or other person appointed under this Deed or any of the Credit Documents, indemnify themselves out of the Trust Property and the
Trust Property Delegated against all proceedings, claims and demands which may be made or taken against it and all costs, charges, damages, expenses and liabilities which it may suffer or incur unless suffered or incurred by reason of its own gross
negligence or wilful misconduct; and
|
|
|
(g)
|
unless it has, in its capacity as trustee for the Secured Creditors, received actual notice to the contrary, assume that (i) no Event of Default has occurred and
no Credit Party is in breach of or default under its obligations under any of the Credit Documents and (ii) any right, power, authority or discretion vested by any Credit Document in any person has not been exercised.
|
The Agents shall promptly inform the Facility Agent (and in the case of the Delegate Collateral Agent, inform the Collateral Agent) of:
|
|
(a)
|
the contents of any written notice or document received by it in its capacity as Collateral Agent and Delegate Collateral Agent from any Credit Party under any Credit
Document; and
|
|
|
(b)
|
the occurrence of any Event of Default or any default by a Credit Party in the due performance of or compliance with its obligations under any Credit Document of which
the Collateral Agent or Delegate Collateral Agent has received written notice from any other Party.
|
Notwithstanding anything to the contrary expressed or implied in any Credit Document, the Agents shall not:
|
|
(a)
|
be liable to anyone where it has acted reasonably and in good faith on the opinion or advice of or any information obtained from any lawyer, accountant, architect,
engineer, surveyor, broker, consultant, valuer or other expert (including any auditor), whether obtained by the Agents or otherwise whether or not the expert’s liability in respect thereof is limited by a monetary cap or otherwise and whether
or not any such opinion, advice or information contains some error or is not authentic;
|
|
|
(b)
|
be obliged to monitor or enquire as to whether or not an Event of Default has occurred and will not be deemed to have knowledge of the occurrence of an Event Default
unless it has actual knowledge or express notice thereof;
|
14
|
|
(c)
|
have any duty to (i) ensure that any payment or other financial benefit in respect of any of the Trust Property or the Trust Property Delegated is duly and
punctually paid, received or collected as and when the same becomes due and payable or (ii) to procure that the correct amounts (if any) are paid or received or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys
or other property paid, distributed, accrued or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise on, or in respect of or in substitution for any of the Trust Property or the Trust
Property Delegated;
|
|
|
(d)
|
unless required by law or ordered so to do by a court of competent jurisdiction, be required to (i) disclose to any Secured Creditor any credit or other
information (other than information in the Agents’ possession specifically concerning the Credit Documents) with respect to the financial condition or affairs of any member of the Group or any of their related entities whether coming into its
or any of its affiliates possession before or on the entry into this Deed or at any time thereafter or (ii) request any certificates or other documents from any member of the Group unless specifically requested to do so by the Facility Agent in
accordance with this Deed or any of the Credit Documents;
|
|
|
(e)
|
be bound to account to any other Secured Creditor for any sum or the profit element of any sum received by it for its own account;
|
|
|
(f)
|
be bound to disclose to any other person (including any Secured Creditor) (i) any confidential information or (ii) any other information if disclosure would
or might in its reasonable opinion constitute a breach of any law or be a breach of fiduciary duty;
|
|
|
(g)
|
be liable to any of the Secured Creditors for any action taken or omitted to be taken under or in connection with any of the Credit Documents unless caused by its
fraud, gross negligence or wilful misconduct;
|
|
|
(h)
|
be under any obligations other than those which are specifically provided for in the Credit Documents to which it is a party;
|
|
|
(i)
|
have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Credit Party; or
|
|
|
(j)
|
be obliged to take any action in relation to enforcing or perfecting any charge over any shares in a company registered or incorporated with unlimited liability.
|
|
6.7
|
Responsibility of Secured Creditors
|
It is understood and agreed by each Secured Creditor that at all times that Secured Creditor has itself been, and will continue to be, solely responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the Credit Documents including but not limited to:
|
|
(a)
|
the financial condition, creditworthiness, condition, affairs, status and nature of each of the Credit Parties;
|
15
|
|
(b)
|
the legality, validity, effectiveness, adequacy and enforceability of each of the Credit Documents and the Transaction Security and any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(c)
|
whether that Secured Creditor has recourse, and the nature and extent of that recourse, against any Credit Party or any other person or any of their respective assets
under or in connection with the Credit Documents or the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by any person in connection with the Credit Documents or the transactions contemplated therein or
any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents; and
|
|
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Trust Property or the Trust Property Delegated, the priority of any of the
Transaction Security or the existence of any other Security affecting the Trust Property or the Trust Property Delegated,
|
and each Secured Creditor warrants to the Agents that it has not relied on and will not at any time rely on the Agents in respect of any of these matters.
|
6.8
|
No Responsibility to Perfect Security
|
The Agents shall not be liable for any omission or defect in, or any failure to preserve or perfect any or all of the Transaction Security including, without limitation, any failure to:
|
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Credit Party to any of the Trust Property or the Trust
Property Delegated;
|
|
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Credit
Documents or the Transaction Security;
|
|
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of any of the Credit Documents or of the Transaction Security;
|
|
|
(d)
|
take, or to require any of the Credit Parties to take, any steps to perfect its title to any of the Trust Property or the Trust Property Delegated or to render the
Transaction effective or to secure the creation of any ancillary security under the laws of any jurisdiction; or
|
16
|
|
(e)
|
require any further assurances in relation to any of the Transaction Security.
|
The Agents
shall not be under any obligation to insure any of the Trust Property or the Trust Property Delegated, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Credit
Documents. The Agents shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. Where the Agents are named on any insurance policy as an insured party, it shall not be
responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless any Secured
Creditor shall have requested it to do so in writing and the Agents shall have failed to do so within 14 days after receipt of that request.
|
|
(a)
|
Each of the Agents shall be at liberty to place (at the cost of the Credit Parties) any of the Credit Documents and any title deeds or other documents relating to the
Transaction Security in any safe custody selected by the Agents or with any financial institution, any company whose business includes the safe custody of documents or any firm of lawyers of good repute and the Agents shall not be responsible for,
or required to insure against, any loss incurred in connection with that deposit.
|
|
|
(b)
|
Each of the Agents may in its absolute discretion make any such arrangements as it thinks fit for allowing any Credit Party or its lawyers or auditors or other advisers
access to or possession of any title deeds and other documents relating to the Transaction Security.
|
|
|
(c)
|
The Agents shall not be responsible for any loss which may result arising out of any deposit, access, possession or other matter provided for in this Clause 6.10.
|
Each
of the Agents shall be entitled to accept without enquiry, and shall not be obliged to investigate, such evidence of right and title as any Credit Party may have to any of the Trust Property or the Trust Property Delegated and shall not be liable
for or bound to require any Credit Party to remedy any defect in its right or title.
|
6.12
|
Refrain from Illegality
|
Each of the Agents may refrain from doing anything which in its opinion would or might be contrary to any law of any jurisdiction or any
directive or regulation binding on it which would or might otherwise render it liable to any person, and the Agents may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
17
|
6.13
|
Business with the Credit Parties
|
Each of the Agents may accept deposits from, lend money to or provide advisory or other services to and generally engage in any kind of banking or other business with any of the Credit Parties whether or
not it may or does lead to a conflict with the interests of any of the Secured Creditors and may do so without any obligation to account to or disclose any such arrangements to any person.
|
6.14
|
Agent Division Separate
|
In acting as trustee for the Secured Creditors, each of the Agents shall be regarded as acting through its trustee division which shall be
treated as a separate entity from any of its other divisions or departments and any information received by any other division or department of the relevant Agent may be treated as confidential and shall not be regarded as having been given to the
relevant Agent’s trustee division.
|
6.15
|
Exclusion of Liability
|
Neither the Agents nor any of their officers, employees or agents makes, or shall at any time be deemed to have made any representation or
warranty (express or implied) with regard to, nor shall it be responsible or liable to any person for:
|
|
(a)
|
the adequacy, accuracy or completeness of any representation, warranty, statement or information contained in this Deed or any Credit Document, notice, report or other
document, statement or information circulated, delivered or made to any Secured Creditor whether orally or otherwise and whether before, on or after the date of this Deed;
|
|
|
(b)
|
the execution, delivery, validity, legality, priority, ranking, adequacy, effectiveness, performance, enforceability or admissibility in evidence of this Deed or any
Credit Document or any other document referred to in paragraph (a) above or of any Transaction Security created thereby or any obligations imposed thereby or assumed thereunder or any other document, agreement or arrangement entered into, made
or executed in anticipation of, pursuant to or in connection therewith;
|
|
|
(c)
|
anything done or not done by it or any of them under or in connection with this Deed or the Credit Documents;
|
|
|
(d)
|
any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Credit Documents or the
Transaction Security or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise;
|
|
|
(e)
|
the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Credit Documents, the Transaction
Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection therewith; or
|
|
|
(f)
|
any shortfall which arises on the enforcement of the Transaction Security,
|
18
|
|
and each of the Secured Creditors agrees that it will not take any proceedings or assert or seek to assert against any officer, employee or agent of the Agents any claim it might have against any
of them in respect of the matters referred to in this Clause 6.15.
|
|
7.
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
7.1
|
Appointment of Additional Agents
|
|
|
(a)
|
The Collateral Agent shall, at any time and for any purpose or reason whatsoever, have the power to appoint any person to act either as a new or additional trustee, or
as co-trustee jointly with the Collateral Agent, with (subject to the provisions of this Deed) such of the Collateral Agent’s rights (including the right to reasonable remuneration and indemnity but not exceeding those conferred on the
Collateral Agent by this Deed), duties and obligations as are vested in the Collateral Agent by this Deed or any Credit Document as shall be conferred or imposed on such person by the instrument of such co-trustee’s appointment.
|
|
|
(b)
|
Any such appointment by the Collateral Agent shall be reasonably acceptable to the Company; provided that the Company’s consent shall not be required pursuant to
this clause (b) if an Event of Default exists at the time of the appointment of the new or additional or co-trustee acting jointly with the Agents.
|
|
|
(c)
|
The Collateral Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral
Agent shall have exercised reasonable care in the selection of such person.
|
|
|
(d)
|
So long as it continues to be a trustee under this Deed, the Collateral Agent shall have power to remove any such new or additional trustee or co-Collateral Agents with
or without cause.
|
|
|
(e)
|
The remuneration the Collateral Agent may pay to any such person, and any costs and expenses incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Deed, be treated as costs and expenses incurred by the Collateral Agent.
|
The
Collateral Agent may at any time delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Credit Documents and such delegation may be made upon such terms
and conditions (including the power to sub-delegate) and subject to such restrictions as the Collateral Agent may think fit. Such delegate or sub-delegate shall be responsible for its own acts and omissions and the Agents shall not be bound to
supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral Agent shall have exercised reasonable care in the selection of such person.
19
|
7.3
|
Retirement or Removal of Agents
|
|
|
(a)
|
The Collateral Agent may retire at any time (without assigning any reason therefor and without being responsible for any costs occasioned by such retirement) by giving
not less than 15 Business Days’ prior written notice to that effect to the Facility Agent (on behalf of the Lenders) and the Company.
|
|
|
(b)
|
The Delegate Collateral Agent may not resign except with the prior consent of the Collateral Agent. Only after such consent is received and subject to the other
provisions of this Clause 7.3 and without being responsible for any costs occasioned by such resignation, the Delegate Collateral Agent may resign by giving not less than 15 Business Days’ prior written notice to that effect to the Facility
Agent (on behalf of the Lenders) and the Company.
|
|
|
(c)
|
The Facility Agent (acting on the instructions of the Required Lenders), after consultation with the Parent, may remove an Agent from its role as trustee under this
Deed by giving notice to that effect to the relevant Agent and each of the other Parties to this Deed.
|
|
|
(d)
|
The retirement or removal of a sole Collateral Agent or Delegate Collateral Agent shall not take effect until (i) the appointment of a successor Collateral Agent
or Delegate Collateral Agent, as the case may be, as a co-trustee has been made and (ii) the Facility Agent is satisfied that all things required to be done in order that the relevant Credit Documents continue to provide perfected and
enforceable security in favour of the successor Collateral Agent or Delegate Collateral Agent (as applicable) have been done.
|
|
|
(e)
|
If a notice of retirement or removal has been given under paragraph (a) or (b) above, the power to appoint new Agents shall vest in the Required Lenders. The
Required Lenders shall appoint a successor Collateral Agent or Delegate Collateral Agent, as the case may be, who shall be a commercial bank or trust company reasonably acceptable to the Company; provided that the Company’s consent shall not be
required if an Event of Default exists at the time of appointment of such successor Agent. If no successor Agent shall have (i) been appointed by the Required Lenders and (ii) accepted such appointment within 15 Business Days of the giving
of such notice, the Facility Agent (acting on the instructions of the Required Lenders), with the consent of the Company (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and
surplus of not less than $500,000,000 as successor Collateral Agent or Delegate Collateral Agent (as applicable) who shall serve as Agent until such time, if any, as the Required Lenders appoint a successor Collateral Agent or Delegate Collateral
Agent (as applicable) as provided above; provided that the Company’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Agent.
|
|
|
(f)
|
If a successor to the Collateral Agent or the Delegate Collateral Agent is appointed under the provisions of this Deed (i) the retiring Agent shall be discharged
from any further obligations under, but shall remain entitled to the benefits of, this Deed and (ii) the successor trustee and each of the other Parties shall have same rights and obligations amongst themselves as they would have had if such
successor had been an original party to this Deed.
|
20
No party to
this Deed may assign all or any of its rights or transfer any of its obligations under this Deed except as expressly contemplated by this Deed, by the Credit Agreement or as may be required by law.
|
8.2
|
Change of Secured Creditor
|
Any person which is (subject only to its accession to this Deed) a permitted assignee or a transferee of a Lender, a transferee of a Term
Loan Hedging Creditor or a successor Facility Agent, in each case for the purposes of and in accordance with the terms of the Credit Agreement, shall be entitled to execute and deliver to the Collateral Agent a Secured Creditor Accession
Undertaking, a Transfer Certificate or Assignment Agreement and, with effect from (x) the date of acceptance by, where appropriate, the Facility Agent (or, if appropriate, the outgoing Facility Agent) and the Collateral Agent or (y) if
later, the date specified in that Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement:
|
|
(a)
|
the Secured Creditor ceasing to be a Lender and/or Facility Agent shall be discharged from further obligations towards the Collateral Agent and other Secured Creditors
under this Deed and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to such date); and
|
|
|
(b)
|
as from that date, the new Lender or Facility Agent shall assume the same obligations, and become entitled to the same rights as it would have had if it had been an
original party to this Deed in that capacity.
|
Any
Term Loan Hedging Creditor that wishes to become a Party to this Deed in the capacity as a Secured Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Secured Creditor Accession Undertaking. With effect
from the date of acceptance by the Collateral Agent of a Secured Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by such Term Loan Hedging Creditor or, if later, the date specified in that Secured Creditor
Accession Undertaking, the Term Loan Hedging Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Deed in that capacity.
|
9.1
|
Transaction and Enforcement Expenses
|
The Credit Parties shall, from time to time on demand of the Agents, reimburse the Agents:
21
|
|
(a)
|
for all reasonable documented out-of-pocket costs and expenses (including legal fees) properly incurred by the Agents, a Receiver or any Delegate in connection with the
negotiation, preparation and execution of this Deed and the Credit Documents and the completion of the transactions and perfection of the security contemplated in the Credit Documents; and
|
|
|
(b)
|
on a full indemnity basis, for all costs and expenses (including legal fees) incurred by the Agents, a Receiver or any Delegate in connection with the exercise,
preservation and/or enforcement of the Security, any of the rights, powers and remedies of the Agents and any proceedings instituted by or against the Agents as a consequence of taking or holding the Security or of enforcing those rights, powers and
remedies;
|
in each case, together with any applicable VAT thereon.
The Credit
Parties shall promptly pay all stamp, registration, notarial, documentary and other taxes or fees (including any penalties fines, supplements, surcharge or interest relating to such taxes) to which this Deed, the Credit Documents, the Transaction
Security or any judgment given in connection with them, is or at any time may be, subject and shall, from time to time, indemnify the Agents on demand against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax or fee.
If
any Credit Party fails to pay any sum on the due date for payment of that sum the relevant Credit Party shall pay interest on any such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on
such sum) from the date of demand until the date of payment calculated on a daily basis at the rate determined in accordance with the provisions of section 2.06(b) or (c) (
Interest
) (as applicable) of the Credit Agreement.
|
10.
|
AMENDMENTS AND RELEASES
|
The Company
and the Agents, if authorised by the Facility Agent, may amend the terms of, waive any of the requirements of, or grant consents under, this Deed any such amendment, waiver or consent shall be binding on all the Parties to this Deed and the Agents
shall be under no liability whatsoever in respect thereof
provided that
:
|
|
(i)
|
the prior consent of all of the Lenders is required to authorise any amendment to Clause 3.1 (
Order of Application
)), this Clause 10 or Clause 11
(
Termination of the Trusts
); and
|
|
|
(ii)
|
no new or additional obligations may be imposed upon, nor shall any amendment or waiver which relates to the rights of, the Facility Agent or of the Agents (including,
without limitation, Clause 4.3 (
Indemnity to Agents
)) be effective without the consent of the Facility Agent or, as the case may be, the Agents.
|
22
Upon:
|
|
(a)
|
a disposal of any of the Trust Property or Trust Property Delegated pursuant to the enforcement of the Security by a Receiver or the Agents;
|
|
|
(b)
|
a disposal of any of the Trust Property or Trust Property Delegated in accordance with section 14.21
(Release of Liens and the Parent Guaranty; Flag Jurisdiction
Transfer
) of the Credit Agreement; or
|
|
|
(c)
|
any other disposal of any of the Trust Property or Trust Property Delegated which is otherwise permitted under the Credit Documents,
|
the Agents shall (at the cost of the Credit Parties) release that property from the Transaction Security to which it is subject and may
execute, without the need for any further authority from the Secured Creditors, any release of the Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that may be required or desirable.
|
10.3
|
Release of Credit Parties
|
If a Credit Party ceases to be a Credit Party under the Credit Agreement then such Credit Party shall automatically be released as a
Credit Party under this Deed. Each of the Parties agrees that the Agents may release any of the Credit Parties from any guarantee or indemnity in the circumstances contemplated by the Credit Agreement. In the case of a Credit Party which is no
longer a Credit Party under the Credit Agreement, the Agents shall (at the cost of that Credit Party) release the Security granted by it and the Agents are authorised, without the need for further authority from the Secured Creditors, to execute
such agreements or deeds as are necessary to effect such a release.
|
11.
|
TERMINATION OF THE TRUSTS
|
The trusts set out in this Deed shall terminate on the Discharge Date. At that time the Agents shall release, without recourse or
warranty, all of the Transaction Security then held by it.
No
failure by the Agents to exercise, nor any delay by the Agents in exercising, any right or remedy under this Deed shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or other
exercise thereof or the exercise of any other such right or remedy.
|
13.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect or any of the Transaction Security is or becomes
23
ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Deed or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Transaction Security under the law of any other jurisdiction.
|
|
13.2
|
Potentially Avoided Payments
|
If the Agents determine that an amount paid to the Secured Creditors under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Deed, such amount shall be regarded as not having been paid.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Credit Party hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agents could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Credit Parties in respect of any sum due to the Agents hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged
only to the extent that on the Business Day following receipt by the Agents of any sum adjudged to be so due in such other currency the Agents may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Agents in the specified currency, each Credit Party agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agents against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Agents in the specified currency, the Agents agree to remit such excess to
the Company.
The
rights and remedies provided by this Deed are cumulative and not exclusive of any rights or remedies provided by law.
Where
there are any inconsistencies between the Trustee Acts and the provisions of this Deed, the provisions of this Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of
this Deed shall constitute a restriction or exclusion for the purposes of that Act.
24
|
13.6
|
Conflicting provisions
|
If there is any conflict between the provisions of this Deed and any Credit Document with regard to instructions to or other matters
affecting the Agents, this Deed will prevail. However, nothing in this Deed shall limit the ability of the Agents to exercise any rights, powers and discretions it may have in its capacity as a Secured Creditor.
Nothing contained in this Deed shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it.
Any consents
given by the Agents for the purposes of this Deed may be given on such terms and subject to such conditions (if any) as the Agents may require.
|
14.1
|
Communications in Writing
|
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
|
|
E-mail:
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
25
|
|
(c)
|
to the Facility Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
with
copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a Party to the other Parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original Secured Creditors at the addressed identified with its name in Schedule 1 hereto; provided that, with respect to all notices and other
communication made by electronic mail or other electronic means, the Agents, the Facility Agent and the Company agree that they shall notify each other in writing of their electronic mail
26
address and/or any other information required to enable the sending and receipt of information by that means and they shall notify each other of any change to their address or any other such
information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight
courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except
that notices and communications to the Agents or the Facility Agent shall not be effective until received by the Agents or the Facility Agent (as applicable), or (iv) when electronic mailed, be effective only when actually received in readable
form and in the case of any electronic communication made by the Company to the Agents or the Facility Agent, only if it is addressed in such a manner as the Agents or the Facility Agent shall specify for this purpose.
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15.
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GOVERNING LAW AND JURISDICTION
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This Deed
and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Each of the
parties hereto agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising our of or in connection with this Deed or any non-contractual obligations arising out of or in connection
with this Deed (“
Proceedings
”) and, for such purposes, irrevocably submits to the jurisdiction of such courts. Nothing in this Clause 15.2 shall (or shall be construed so as to) limit the right of any Secured Creditor to take
Proceedings in any other court of competent jurisdiction, nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings by any Secured Creditor in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by law.
For
the purpose of Clause 15.2 (
Jurisdiction
), the parties hereto irrevocably waive any objection which they might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and agree(s)
not to claim that any such court is not a convenient or appropriate forum.
The Credit
Parties agree that the process by which any Proceedings in England are begun may be served on it by being delivered to EC3 Services Limited at 51 Eastcheap, London, EC3M 1JP or, if different, its registered office for the time being. If such person
is not or ceases to be effectively appointed to accept service of process on behalf of the Credit Parties, the Credit Parties shall, on the written demand of any Secured Creditor, appoint a further person in England to accept service of process on
its behalf and, failing such appointment within 15 days, any Secured Creditor shall be
27
entitled to appoint such a person by written notice to the Credit Parties. Nothing in this paragraph shall affect the right of any Secured Creditor to serve process in any other manner permitted
by law.
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16.
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COUNTERPARTS AND EFFECTIVENESS
|
This Deed
may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This Deed
shall take effect and be delivered as a deed on the date on which it is stated to be made notwithstanding that the Agents or any other Party may have executed it under hand only.
IN WITNESS WHEREOF
this Deed has been executed as a deed by the Credit Parties and has been signed on behalf of the Agents and other Parties.
28
SCHEDULE I
ORIGINAL SECURED CREDITORS
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DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
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Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
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DNB NOR BANK ASA
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Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
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HSBC BANK PLC
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8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
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KFW IPEX-BANK GMBH
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Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia
Wenzel /
Mr
Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
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NORDEA BANK NORGE ASA
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Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
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29
SCHEDULE 2
FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
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To:
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KfW IPEX-Bank GmbH and [
•
], for themselves and each of the other Secured Creditors to the Security Trust Deed referred to below.
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THIS UNDERTAKING
is made on [
date
] by [
new Lender/Term Loan Hedging Creditor/Facility Agent/Receiver/Delegate
] (the
“
Acceding Secured Creditor
”) in relation to the Security Trust Deed (the “
Security Trust Deed
”) dated [
•
] between KfW IPEX-Bank GmbH as Collateral Agent, Deutsche Schiffsbank Aktiengesellschaft as
Delegate Collateral Agent, KfW IPEX-Bank GmbH as facility agent, the Secured Creditors named therein and the Credit Parties. Terms defined in the Security Trust Deed shall bear the same meanings when used in this Undertaking.
In consideration of the Acceding Secured Creditor being accepted as a Secured Creditor for the purposes of the Security Trust Deed, the Acceding Secured
Creditor hereby confirms that, as from [
date
], it intends to be party to the Security Trust Deed as a Secured Creditor, undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by [the Facility Agent and
by]/[a Secured Creditor] and agrees that it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
This Undertaking shall be governed by and construed in accordance with English law.
THIS
UNDERTAKING
has been entered into on the date stated above.
Acceding [Secured Creditor]/[Facility Agent]
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By:
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Address for Notices:
Fax:
For attention of:
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Accepted by the Collateral Agent:
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for and on behalf of
KfW
IPEX-Bank GmbH
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Date:
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Accepted by the [Facility Agent]/[outgoing Facility Agent]:
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for and on behalf of
[
Insert name of Facility Agent or
outgoing Facility Agent as appropriate]
]
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Date:
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30
SIGNATORIES
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THE COMPANY
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Signed as a deed on behalf of
PRIDE OF HAWAII, LLC
, a company incorporated in Delaware, by
, being a person who, in accordance with the laws of that territory, is acting under the authority
of the company
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Authorised signatory
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31
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THE PARENT
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Signed as a deed on behalf of
NCL CORPORATION LTD.
, a company incorporated in Bermuda, by
, being a person who, in accordance with the laws of that territory, is acting under the authority
of the company
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Authorised signatory
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32
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THE ORIGINAL SECURED CREDITORS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
,
acting by
:
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Director
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Director
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33
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Executed as a deed by
DNB NOR BANK
ASA
, acting by
,
in the presence of:
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Director
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Witness
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Name:
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Address:
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Occupation:
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34
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SIGNED
and
DELIVERED
as a
DEED
by
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)
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HSBC BANK PLC
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)
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acting by
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)
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its duly authorised attorney-in-fact
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)
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in the presence of:
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)
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Attorney-in-Fact
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Witness
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Name:
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Address:
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Occupation:
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35
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by
:
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Director
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Director
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36
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Executed as a deed by
NORDEA
BANK NORGE ASA
, acting by
:
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Director
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Director
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37
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THE FACILITY AGENT
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by
:
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Director
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Director
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38
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THE COLLATERAL AGENT
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Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by
:
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Director
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Director
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39
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THE DELEGATE COLLATERAL AGENT
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Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by
:
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Director
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Director
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EXHIBIT O-1
Dated [•] 2010
HULL NO. S. 678
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY ONE, LTD.
as Company
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
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INTERPRETATION
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1
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2.
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DELEGATION
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6
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3.
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COVENANT TO PAY
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6
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4.
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LEGAL ASSIGNMENT
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6
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5.
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THE CONTRACT
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7
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6.
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CONTINUING SECURITY
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8
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7.
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REPRESENTATIONS AND WARRANTIES
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10
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8.
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UNDERTAKINGS
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11
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9.
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FURTHER ASSURANCE
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12
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10.
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ENFORCEMENT OF SECURITY
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13
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11.
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RECEIVERS
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13
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12.
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APPLICATION OF PROCEEDS
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14
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13.
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POWER OF ATTORNEY
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14
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14.
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RELEASE OF THE SECURITY
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14
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15.
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PAYMENTS
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15
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16.
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WAIVERS AND REMEDIES
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15
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17.
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ADDITIONAL PROVISIONS
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15
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18.
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ASSIGNMENT
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16
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19.
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NOTICES
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17
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20.
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GOVERNING LAW
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19
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21.
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COUNTERPARTS AND EFFECTIVENESS
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19
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SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
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20
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SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
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23
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
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24
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White & Case LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
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(1)
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BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Company
”); and
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(2)
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KFW IPEX-BANK GMBH
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
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(3)
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DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the “
Delegate
”, which expression includes any person which is for the time being a delegate appointed
by the Collateral Agent for the purposes of this Assignment.
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RECITALS
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(A)
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The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
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The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
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(C)
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The Company and the Delegate intend this Assignment to take effect as a deed.
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(D)
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Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreements, the Security Trust Deeds and the Intercreditor Agreement.
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In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and
benefits in, to and in respect of the Refund Guarantees.
“
Borrower
” means Pride of Hawaii, LLC
(“
POH
”) with respect to the Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway One Credit Facility
” means the €529,846,154 credit agreement dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint
Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated 24 September 2010 between the Company, the Parent and
the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit
Agreements.
“
ECF Security Trust Deed
” means the security trust deed dated on or about the date hereof
between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Export Credit Facilities.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreements.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Company, the Lenders, the lenders under the Breakaway One Credit
Facility, the collateral agent under the Breakaway One Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the Jewel Credit Facility).
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof,
among inter alia, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
, the Parent, POH, the Collateral Agent, the Delegate Collateral Agent
and the Facility Agent.
“Jewel Credit Facility”
means the €126,075,000 delayed-draw term loan facility,
dated on or about the date hereof, among inter alia, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
2
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest
Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and
assigns, if any.
“
Other Vessel 1 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on
or about the date hereof between the Company, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the ECF Security Trust Deeds to act as security trustee for and on behalf of the ECF Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund
Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Delegate is satisfied that:
3
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(a)
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none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
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(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreements).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Shipbuilder.
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1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
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(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
4
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
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|
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(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
5
|
2.1
|
Pursuant to the Security Trust Deeds, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights,
powers and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deeds including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deeds. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Company agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to any Enforcement
Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Delegate.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured Obligations.
|
4.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees).
|
|
5.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect
and enforce the interests of the Delegate in the Refund Guarantees.
7
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate
under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
8
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
9
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Company acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreements, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i)
10
to the extent that it may be regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid
as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway One Credit Facility and the
Credit Agreements, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway One Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreements; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
11
|
8.3
|
Notification of Misrepresentation
|
The Company shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Delegate until delivered
provided that
,
to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 8.5 to the extent that it fulfils its obligations under clause 8.5 (
Delivery of Cash
) of the Other Vessel 1
Assignment of KfW Refund Guarantees.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such
notices and directions as the Delegate may consider necessary.
12
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate shall act in accordance with the instructions of the Collateral Agent who shall act in accordance with the terms of any instructions received under the Intercreditor
Agreement for the purposes of exercising (or refraining from exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Delegate may in its absolute discretion enforce all or any part
of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply
the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the Delegate
may by a written instrument and
13
without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being
for all purposes the agent of the Company.
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
14
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Company
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
15
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Company in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such excess to the
Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway One Credit Facility and the Credit Agreements.
16
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit Agreements.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deeds.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
|
|
(b)
|
to the Collateral Agent:
|
|
|
|
Attention: Ship Finance, X2a4, Claudia
|
|
|
|
Wenzel Fax: +49 69 7431 2944
|
|
|
|
E-mail: claudia.wenzel@kfw.de
|
|
|
|
7665 Corporation Center Drive
|
17
|
|
|
Attention: Chief Financial Officer and General Counsel
|
|
|
|
Attention: Steve Martinez
|
|
|
|
Email: martinez@apollolp.com
|
|
|
|
Attention: Brad J. Finkelstein
|
|
|
|
Email: bfinkelstein@omm.com
|
or
to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Company agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Company to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
18
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the Collateral Agent and/or the Delegate may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
|
|
21.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company, the Collateral Agent and the Delegate.
19
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
To:
|
KfW IPEX-Bank GmbH as Refund Guarantor
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [•]
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
|
Cc:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
Date: [•]
Dear Sirs
We hereby give you notice that
pursuant to an assignment agreement dated [•] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Company
”), KfW IPEX-Bank GmbH as Collateral Agent and [•] as delegate (the
“
Delegate
”), the Company has assigned to the Delegate a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
•
] and issued by you as refund
guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all
monies which may be payable under or in respect of the Refund Guarantee.
20
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
, Pride of Hawaii,
LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [•], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and
the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Delegate, all remedies of the Company provided for in the Refund Guarantee or available at law or in
equity shall be exercisable by the Delegate;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
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(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
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(g)
|
the Delegate has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Company) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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21
|
(h)
|
the Company has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time to
time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
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(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are
hereby authorised and instructed, without requiring further approval from the Company, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
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Yours faithfully
|
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|
For and on behalf of
BREAKAWAY ONE, LTD.
|
22
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[
To be printed only on copy of the Notice
of Assignment given
]
|
To:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the Delegate as security trustee on behalf of certain “ECF creditors” in respect
of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title, interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice;
capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
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|
Yours faithfully
|
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|
|
|
For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
By:
Date:
|
23
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
|
|
|
[Name of Issuer]
|
|
[Date of Refund Guarantee]
|
24
SIGNATORIES
|
|
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY ONE, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory]
[signatories]
|
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Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s]
who, in accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory]
[signatories]
|
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|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory]
[signatories]
|
25
EXHIBIT O-2
Dated [•] 2010
HULL NO. S. 692
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY TWO, LTD.
as Company
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
|
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1.
|
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INTERPRETATION
|
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1
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2.
|
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DELEGATION
|
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6
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3.
|
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COVENANT TO PAY
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6
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4.
|
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LEGAL ASSIGNMENT
|
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6
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5.
|
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THE CONTRACT
|
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7
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6.
|
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CONTINUING SECURITY
|
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8
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7.
|
|
REPRESENTATIONS AND WARRANTIES
|
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10
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8.
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UNDERTAKINGS
|
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11
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9.
|
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FURTHER ASSURANCE
|
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12
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10.
|
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ENFORCEMENT OF SECURITY
|
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13
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11.
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RECEIVERS
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13
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12.
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APPLICATION OF PROCEEDS
|
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14
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13.
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POWER OF ATTORNEY
|
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14
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14.
|
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RELEASE OF THE SECURITY
|
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14
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15.
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PAYMENTS
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15
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16.
|
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WAIVERS AND REMEDIES
|
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15
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17.
|
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ADDITIONAL PROVISIONS
|
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15
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18.
|
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ASSIGNMENT
|
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16
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19.
|
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NOTICES
|
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17
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20.
|
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GOVERNING LAW
|
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19
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21.
|
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COUNTERPARTS AND EFFECTIVENESS
|
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19
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|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
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20
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SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
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24
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
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25
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
•
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Company
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
|
(3)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the “
Delegate
”, which expression includes any person which is for the time being a delegate appointed
by the Collateral Agent for the purposes of this Assignment.
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
|
(C)
|
The Company and the Delegate intend this Assignment to take effect as a deed.
|
|
(D)
|
Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreements, the Security Trust Deeds and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and
benefits in, to and in respect of the Refund Guarantees.
“
Borrower
” means Pride of Hawaii, LLC
(“
POH
”) with respect to the Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway Two Credit Facility
” means the €529,846,154 credit agreement dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint
Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated 24 September 2010 between the Company, the Parent and
the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit
Agreements.
“
ECF Security Trust Deed
” means the security trust deed dated on or about the date hereof
between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Export Credit Facilities.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreements.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Company, the Lenders, the lenders under the Breakaway Two Credit
Facility, the collateral agent under the Breakaway Two Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the Jewel Credit Facility).
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof,
among inter alia, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
, the Parent, POH, the Collateral Agent, the Delegate Collateral Agent
and the Facility Agent.
“Jewel Credit Facility”
means the €126,075,000 delayed-draw term loan facility,
dated on or about the date hereof, among inter alia, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
2
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest
Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and
assigns, if any.
“
Other Vessel 2 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on
or about the date hereof between the Company, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the ECF Security Trust Deeds to act as security trustee for and on behalf of the ECF Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund
Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
3
“
Security Period
” means the period beginning on the date of this Assignment
and ending on the date upon which the Delegate is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreements).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
4
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
5
|
2.1
|
Pursuant to the Security Trust Deeds, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights,
powers and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deeds including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deeds. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Company agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to any Enforcement
Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Delegate.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured Obligations.
|
4.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
6
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Company shall countersign such Notice of Assignment.
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees).
|
|
5.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect
7
of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect and enforce the interests of the Delegate in the Refund Guarantees.
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate
under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
8
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
9
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Company acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreements, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
10
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway Two Credit Facility and the
Credit Agreements, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway Two Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreements; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
11
|
8.3
|
Notification of Misrepresentation
|
The Company shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Delegate until delivered
provided that
,
to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 8.5 to the extent that it fulfils its obligations under clause 8.5 (
Delivery of Cash
) of the Other Vessel 2
Assignment of KfW Refund Guarantees.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such
notices and directions as the Delegate may consider necessary.
12
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate shall act in accordance with the instructions of the Collateral Agent who shall act in accordance with the terms of any instructions received under the Intercreditor
Agreement for the purposes of exercising (or refraining from exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Delegate may in its absolute discretion enforce all or any part
of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply
the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the Delegate
may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for all purposes the
agent of the Company.
13
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
14
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Company
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
15
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Company in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such excess to the
Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway Two Credit Facility and the Credit Agreements.
16
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit Agreements.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deeds.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
(b)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
17
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Company agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Company to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
17
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the Collateral Agent and/or the Delegate may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
|
|
21.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company, the Collateral Agent and the Delegate.
19
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
To:
|
KfW IPEX-Bank GmbH as Refund Guarantor
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [•]
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
|
Cc:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
Date: [•]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [•] (the “
Assignment
”) and made between Breakaway Two,
Ltd. (the “
Company
”), KfW IPEX-Bank GmbH as Collateral Agent and [•] as delegate (the “
Delegate
”), the Company has assigned to the Delegate a second priority assignment of all of its rights, title, interests
and benefits in, to or in respect of the refund guarantee dated [
•
] and issued by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the
Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
20
With effect from your receipt of this notice we hereby give you notice that:
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(a)
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all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
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(b)
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following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [•], among
inter alia
, Pride of Hawaii,
LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [•], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and
the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Delegate, all remedies of the Company provided for in the Refund Guarantee or available at law or in
equity shall be exercisable by the Delegate;
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(c)
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following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
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(d)
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all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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(e)
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the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
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(f)
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the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
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(g)
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the Delegate has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Company) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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21
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(h)
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the Company has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time to
time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
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(i)
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the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
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You are
hereby authorised and instructed, without requiring further approval from the Company, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
Yours faithfully
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For and on behalf of
BREAKAWAY TWO, LTD.
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22
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[To be printed only on copy of the Notice of
Assignment given]
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To:
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Deutsche Schiffsbank Aktiengesellschaft as Delegate
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Domstrasse 18
D - 20095 Hamburg
Germany
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Attn.:
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Marcus Weber / Anne Randewig
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Telephone:
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+49 40 3769 -9646 / -9647
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Facsimile:
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+49 40 3769 -9649
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e-mail:
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marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
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Cc:
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KfW IPEX-Bank GmbH as Collateral Agent
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Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [•]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in
the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the Delegate as security trustee on behalf of certain “ECF creditors” in respect
of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title, interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice;
capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
Yours faithfully
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For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
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By:
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Date:
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24
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
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[Name of Issuer]
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[Date of Refund Guarantee]
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25
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SIGNATORIES
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Signed as a deed on behalf of
BREAKAWAY TWO, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s]
who, in accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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26
EXHIBIT P
DATED 2010
PRIDE OF HAWAII, LLC
(as owner)
and
NCL (BAHAMAS) LTD.
(as bareboat charterer)
to
KFW IPEX-BANK GMBH
(as assignee)
FORM OF FOURTH
DEED OF ASSIGNMENT
AND SUBORDINATION
m.v. “NORWEGIAN JADE”
EXHIBIT P
TABLE OF CONTENTS
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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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Assignment and Negative Pledge
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4
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3
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Notices of Assignment of Assigned Property and Further Assignments
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4
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4
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Subordination
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5
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5
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Ancillary Provisions
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6
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6
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Notice of Assignment under Owner’s Charter and Earnings Assignment and this Deed and Notice of Mortgage
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7
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7
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Application of Moneys
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7
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8
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Power of Attorney
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8
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9
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Partial Invalidity
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8
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10
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Further Assurance
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8
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11
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Waiver of Rights as Surety
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8
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12
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Enforcement Expenses
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9
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13
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Waiver, Remedies Cumulative
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9
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14
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Assignment
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10
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15
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Re-Assignment
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10
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16
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Notices
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10
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17
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Counterparts
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10
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18
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Governing Law and Jurisdiction
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10
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Schedule 1
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13
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Schedule 2
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17
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Schedule 3
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25
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Schedule 4
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1
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Schedule 5
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3
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Schedule 6
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4
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Schedule 7
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9
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Schedule 8
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11
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(i)
DEED OF ASSIGNMENT AND SUBORDINATION
Dated: 2010
BETWEEN:
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(1)
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PRIDE OF HAWAII, LLC
, a Delaware corporation and having its registered office at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United
States of America (the
“Owner”
); and
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(2)
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NCL (BAHAMAS) LTD.
, a company incorporated in and existing under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street,
Hamilton HM 12, Bermuda (the
“Bareboat Charterer”
);
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IN FAVOUR OF:
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(3)
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KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries (as defined below) pursuant to the Security Trust Deed (the “
Assignee
”).
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WHEREAS:
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(A)
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The Owner is the legal and beneficial owner of the whole of the motor vessel “NORWEGIAN JADE” (the
“Vessel”
) registered in the name of the
Owner under the laws and flag of the Bahamas. The Bareboat Charterer is the bareboat charterer of the Vessel pursuant to a bareboat charterparty dated 10 February 2008 (the
“Bareboat Charter”
).
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(B)
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Pursuant to first assignment and subordination deeds dated 10 February 2008 and 16 June 2008 (the
“First Assignment”
) the Bareboat Charterer
assigned its rights, title to and interest in the Insurances and Earnings as collateral to a first priority mortgage dated 10 February 2008 over the Vessel upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square,
London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First Assignee
”).
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(C)
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Pursuant to a second assignment and subordination deed dated 2 April 2009 (the
“Second Assignment”
) the Bareboat Charterer assigned its rights,
title to and interest in the Insurances and Earnings as collateral to a second priority mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway,
as trustee for itself and the parties set out in Schedule 2 (the
“Second Assignee”
).
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(D)
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Pursuant to a third assignment and subordination deed dated 2 April 2009 (the
“Third Assignment”
) the Bareboat Charterer assigned its rights,
title to and interest in the Insurances and Earnings as collateral to a third priority mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway,
as trustee for itself and the parties set out in Schedule 3 (the
“Third Assignee”
).
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(E)
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Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries under or pursuant to the Junior Finance Documents, the Owner has executed
and delivered in favour of the Assignee a fourth priority Bahamian statutory mortgage and has agreed to enter into, and to cause the Bareboat Charterer to enter into, this Deed to assign the benefit of the Insurances and Earnings to the Assignee on
trust for itself and the Beneficiaries as security for the repayment of the Secured Obligations.
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(F)
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By a deed of co-ordination dated as of the date hereof (the
“Fourth Priority Security Co-ordination Deed”
) made between (among others) (1) the
First Assignee (2) the Second Assignee (3) the Third Assignee and (4) the Assignee, the parties have agreed (among other things) as to how the provisions of Clause 7 shall operate. Further by the Fourth Priority Security Co-ordination
Deed it has been agreed that the benefit of this Deed shall be held by the Assignee on trust for itself and the Secured Creditors, including the Secured Creditors set out in Schedule 4 and its and their respective successors, assignees and
transferees (together the “
Beneficiaries
”).
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THIS DEED WITNESSES
as follows:
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1
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Definitions and Interpretation
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The headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed. In this Deed the following terms shall have the
meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed.
“Assigned Property”
means the Insurances, the Earnings and the Bareboat Charter;
“Charter Period”
means that part of the Security Period during which the Vessel is in the service of the Bareboat
Charterer pursuant to the Bareboat Charter (whether or not off hire);
“Compulsory Acquisition”
means
requisition for title or other compulsory acquisition of the Vessel including its capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or
agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency;
“Credit Agreement”
means that certain €126,075,000 credit agreement, dated November [•], 2010 among NCL
Corporation Ltd., as parent, (the “Parent”), the Owner, as borrower, the lenders from time to time party thereto (the “Lenders”), the Assignee, as facility agent and as collateral agent under the Security Documents, Nordea Bank
Norge ASA, as documentation agent, Commerzbank AG, as Hermes agent, and the other parties thereto, as amended, novated, and/or restated or otherwise modified from time to time;
“Default Rate”
means interest at the rate calculated in accordance with section 2.06(b) of the Credit Agreement;
“Earnings”
means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire and passage monies, proceeds of requisition (other than proceeds of Compulsory
Acquisition), rebates and commissions to or for the account of the Owner and/or the Bareboat Charterer, all earnings deriving from the Bareboat Charter, time charters, contracts of affreightment, pooling agreements and joint ventures, compensation,
remuneration for salvage and towage services, damages howsoever arising and detention monies, damages for breach of any charterparty or other contract for the employment of the Vessel including but without limitation the Bareboat Charter, any
amounts payable in consideration of the termination or variation of any charterparty or other such contract including but without limitation the Bareboat Charter, any sums payable or repayable by the Builder under the Building Contract, any
reduction in the Hermes Premium repaid by Hermes to the Owner and any other earnings whatsoever due or to become due to the Owner and/or the Bareboat Charterer;
2
“Insurances”
means all policies and contracts of insurance and entries of
the Vessel in a protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also
include all compensation payable by virtue of Compulsory Acquisition;
“
Junior Finance Documents
” means the
Credit Documents as such term is defined in the Credit Agreement;
“
Lender Creditors
” means the Lenders, the
Assignee and each other Agent under the Credit Agreement;
“
Mortgage
” means that certain fourth priority
statutory mortgage with respect to the Vessel together with that certain fourth priority deed of covenants dated the date hereof and made by the Owner in favour of the Assignee.
“
Obligors
” means the Credit Parties, as such term is defined in the Credit Agreement;
“
Other Creditors
” means any Lender or any affiliate thereof and their successors, transferees and assigns if any (even if
such Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Owner enters into any Interest Rate
Protection Agreements or Other Hedging Agreements from time to time;
“
Owner’s Charter and Earnings
Assignment
” means that certain fourth charter and earnings assignment dated the date hereof and made by the Owner in favour of the Assignee;
“
Owner’s Insurance Assignment
” means that certain fourth insurance assignment dated the date hereof and made by the Owner in favour of the Assignee;
“
Process Agent
” means EC3 Services Limited with its registered office at 51 Eastcheap, London, EC3M 1JP or any other
process agent reasonably acceptable to the Owner, the Bareboat Charterer and the Assignee.
“
Secured
Creditors
” means collectively (i) the Lender Creditors and (ii) the Other Creditors;
“
Secured
Obligations
” has the meaning ascribed to it in the Credit Agreement;
“
Security Documents
” has the
meaning ascribed to it in the Credit Agreement;
“
Security Period
” means the period beginning on the date of
this Deed and ending on the date when the whole of the Secured Obligations have been repaid in full and the Assignor has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has
been made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Junior Finance Documents; and
3
“
Security Trust Deed
” means the Security Trust Deed executed on or about
the date hereof by, inter alia, the Assignor, the Guarantor, the Assignee, the Original Secured Creditors (as defined therein) and the Original Term Hedging Creditors (as defined therein).
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2
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Assignment and Negative Pledge
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In
consideration of:
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2.1.1
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the Assignee consenting to the continued chartering of the Vessel to the Bareboat Charterer pursuant to the Bareboat Charter;
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2.1.2
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the Beneficiaries making certain facilities available to the Owner pursuant to the Credit Agreement, any Interest Rate Protection Agreements and/or any Other Hedging
Agreements;
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2.1.3
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payment by the Assignee to the Bareboat Charterer of ten Dollars (USD10); and
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2.1.4
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other good and valuable consideration from the Assignee to the Bareboat Charterer
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(the adequacy and receipt whereof is hereby acknowledged by the Bareboat Charterer) and as security for payment of the Secured Obligations, the Bareboat Charterer with full title guarantee hereby assigns
to, and agrees to assign to, the Assignee absolutely all its right and title to and interest in the Assigned Property to hold the same absolutely unto the Assignee subject to the First Assignment, the Second Assignment, and the Third Assignment.
The
Bareboat Charterer undertakes that, except with the prior written consent of the Assignee, it will not at any time during the Security Period create or permit to subsist any Liens save for the First Assignment, the Second Assignment and the Third
Assignment (and except for Permitted Liens) on all or any part of the Bareboat Charterer’s right and title to and interest in the Assigned Property.
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3
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Notices of Assignment of Assigned Property and Further Assignments
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3.1
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The Bareboat Charterer undertakes:
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3.1.1
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immediately to give notice of the assignment of the Insurances contained in this Deed to all brokers, insurance companies, underwriters, protection and indemnity and/or
war risk associations through whom any of the policies or entries relating to the Insurances are effected in the form of Schedule 5 and to obtain from such brokers, insurance companies or underwriters a letter of undertaking in the form of Schedule
6 or in such other form as the Assignee may require and from such protection and indemnity or war risk associations in the form of Schedule 7 or in such other form as the Assignee may agree;
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4
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3.1.2
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at all times during the Charter Period to procure that, in lieu of the loss payable clause referred to in the Owner’s Insurance Assignment, a loss payable clause
materially in the form set out in Appendix B to Schedule 6 (or in such other form as the Assignee may approve) or, in the case of entries in a protection and indemnity association, a note of the Assignee’s interest in such form as the Assignee
may approve, shall be endorsed on or attached to the policies, cover notes or certificates of entry relating to the Insurances and that letters of undertaking in such form as the Assignee may approve shall be issued to the Assignee by the brokers
through whom the Insurances are placed (or, in the case of entries in protection and indemnity or war risks associations, by their managers);
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3.1.3
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immediately to give notice of the assignment of the Bareboat Charter substantially in the form of Schedule 7 to the Owner and to procure that the Owner acknowledges and
consents to such assignment by signing an endorsement of the notice in the form set out in Schedule 7;
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3.1.4
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from time to time immediately on the written request of the Assignee (and provided, in the case of the Earnings, that an Event of Default shall have occurred and be
continuing or the charter or contract of affreightment for the Vessel exceeds or is capable of exceeding six (6) months’ duration) to give such further written notice in such form as the Assignee shall require of the assignment of the
Earnings and/or the proceeds of Compulsory Acquisition contained in this Deed. In the case of the Earnings, the Owner undertakes to procure that the person on whom the notice is served acknowledges and consents to such assignment if the said person
is part of the NCLC Group, and otherwise to use its best endeavours to procure that such person acknowledges and consents to such assignment, by signing an endorsement of the notice in the substantially form set out in Schedule 7; and
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3.1.5
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immediately following the execution of any charter of the Vessel or contract of affreightment which, with the exercise of options for extension, could be for a period
longer than thirteen (13) months, on the request of the Assignee, to execute and deliver to the Assignee a first priority assignment of that charter or contract of affreightment in such form as the Assignee shall require but substantially in
the form of this Deed.
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4.1
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The Bareboat Charterer acknowledges that it is aware that the Vessel is mortgaged to the Assignee pursuant to the Mortgage and that it is aware of the terms of the
Mortgage.
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4.2
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The Bareboat Charterer acknowledges that the Assignee’s rights and powers arising out of or pursuant to the Mortgage shall in all respects and at all times have
precedence and priority over the rights and powers of the Bareboat Charterer arising out of or pursuant to the Bareboat Charter.
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4.3
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The Bareboat Charterer undertakes for the duration of the Charter Period to perform all of the Owner’s obligations contained in clause 4 and clause 5 of the deed
of covenants forming part of the Mortgage jointly and severally with the Owner and for this purpose the Bareboat Charterer agrees that references in those clauses to “Earnings” and “Insurances” by cross reference to the Junior
Loan Agreements or otherwise shall be deemed to include the Earnings and the Insurances respectively.
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5
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4.4
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The Bareboat Charterer agrees that, for the duration of the Charter Period, the rights and powers of the Assignee in relation to the Insurances and the Earnings shall
(mutatis mutandis) be the same as the rights and powers of the Assignee under or pursuant to the Mortgage in relation to the Insurances and the Earnings as respectively defined in the deed of covenants forming part of the Mortgage by cross reference
to the Junior Finance Documents or otherwise.
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4.5
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The Bareboat Charterer agrees that, should an Event of Default occur and the Assignee wishes to take and enter into possession of the Vessel pursuant to their rights
under the Mortgage, the Bareboat Charterer will immediately on the demand of the Assignee surrender possession of the Vessel to or to the order of the Assignee free of the Bareboat Charter.
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4.6
|
The Bareboat Charterer agrees that, should an Event of Default occur and the Assignee wishes to sell the Vessel pursuant to their rights under the Mortgage, such sale
may be made free of the Bareboat Charter and any claim for loss of the same shall be made against the Owner or the balance (if any) of the proceeds of sale in the hands of the Assignee after payment of the Secured Obgligations unless the Assignee is
obliged by law to apply such balance in favour of parties other than the Bareboat Charterer.
|
|
|
5.1
|
The Bareboat Charterer undertakes to reimburse the Assignee on demand for all sums which the Assignee may from time to time pay or become liable for in or about the
protection, maintenance or enforcement of the rights created in favour of the Assignee by this Deed or in or about the exercise by the Assignee of any of the powers vested in it under or pursuant to this Deed, together in each case with interest at
the Default Rate from the date when those sums were paid by the Assignee until the date of actual receipt, before or after any relevant judgment, and to keep the Assignee fully and effectually indemnified from and against all actions, losses,
claims, proceedings, costs, demands and liabilities which the Assignee may suffer or incur under or in connection with the Assigned Property.
|
|
|
5.2
|
Notwithstanding the assignments contained in this Deed, the Assignee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by
it under or in connection with this Deed nor to make any claim or take any other action to collect any money or to enforce any rights or benefits assigned to the Assignee by this Deed or to which the Assignee may at any time be entitled under or
pursuant to this Deed.
|
|
|
5.3
|
The Bareboat Charterer shall remain liable to perform all the obligations assumed by it in relation to the Assigned Property and the Assignee shall be under no
obligation of any kind in respect of the Assigned Property nor under any liability in the event of any failure by the Bareboat Charterer to perform, or breach by the Bareboat Charterer of, any of those obligations.
|
|
|
5.4
|
The Bareboat Charterer undertakes to hold the original copies of any and all documents in connection with any of the Assigned Property to the order of the Assignee.
|
6
|
|
5.5
|
The Bareboat Charterer undertakes to perform the Bareboat Charter in accordance with its terms, and not without the prior written consent of the Assignee, to terminate
or purport to terminate the Bareboat Charter (irrespective of the terms of the Bareboat Charter), the Owner and the Bareboat Charterer acknowledging by their execution of this Deed that, if any such consent is given by the Assignee on their
behalves, the Assignee shall be under no liability in the event that any termination of the Bareboat Charter is subsequently adjudged to constitute a repudiation of the Bareboat Charter.
|
|
|
5.6
|
The Bareboat Charterer undertakes not without the prior written consent of the Assignee to agree to any amendment to or variation of the Bareboat Charter unless this is
permitted under the Junior Finance Documents, nor to excuse the Owner from performance of any of its obligations pursuant to the Bareboat Charter.
|
|
6
|
Notice of Assignment under Owner’s Charter and Earnings Assignment and this Deed and Notice of Mortgage
|
|
|
6.1
|
The Owner has agreed to send notice of the Owner’s Charter and Earnings Assignment to the Bareboat Charterer and to procure that the Bareboat Charterer
acknowledges the same (in the form of schedule 1 to the Owner’s Charter and Earnings Assignment).
|
|
|
6.2
|
The Bareboat Charterer has agreed to send notice of the assignment of the Bareboat Charter to the Owner and to procure that the Owner acknowledges the same (in the form
of Schedule 8).
|
|
|
6.3
|
For the purposes of Clause 6.1 and Clause 6.2, execution of this Deed by the Owner and the Bareboat Charterer shall constitute notice by:
|
|
|
6.3.1
|
the Owner to the Bareboat Charterer of the Owner’s Charter and Earnings Assignment and shall also constitute acknowledgement of that notice by the Bareboat
Charterer; and
|
|
|
6.3.2
|
the Bareboat Charterer to the Owner of the assignment of the Bareboat Charter and shall also constitute acknowledgement of that notice by the Owner.
|
|
|
6.4
|
For the purposes of the Bareboat Charter, the execution of this Deed by the Owner and the Bareboat Charterer shall constitute notice by the Owner to the Bareboat
Charterer of the name and details of the mortgagees and shall also constitute acknowledgement of that notice by the Bareboat Charterer.
|
|
|
7.1
|
The benefits and proceeds of any of the Insurances shall be distributed in accordance with the terms of any relevant loss payable clause endorsed on the Insurances,
clause 8 of the Fourth Priority Security Co-Ordination Deed and section 4.05 of the Credit Agreement.
|
|
|
7.2
|
Subject to Clause 7.1, the benefits and proceeds of any of the Assigned Property shall, unless otherwise agreed by the Assignee or otherwise expressly provided in the
Junior Loan Agreements, be applied by the Assignee in or towards satisfaction, or by way of retention on account, of the Secured Obligations, in such manner as the Assignee may in its discretion determine.
|
7
So far
as may be necessary to give effect to this Deed the Bareboat Charterer hereby irrevocably appoints the Assignee as its attorney (with unlimited power of substitution and delegation) for the purpose of doing in the name of the Bareboat Charterer all
acts which the Bareboat Charterer could do in relation to the Assigned Property.
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
The
Bareboat Charterer agrees that from time to time on the written request of the Assignee it will immediately execute and deliver to the Assignee all further documents which the Assignee may require for the purpose of obtaining the full benefits of
this Deed.
|
11
|
Waiver of Rights as Surety
|
|
|
11.1
|
The rights of the Assignee under this Deed, the security constituted by this Deed and the warranties, covenants and obligations of the Bareboat Charterer contained in
this Deed shall not in any way be discharged, impaired or otherwise affected by:
|
|
|
11.1.1
|
any forbearance (whether as to payment or otherwise) or any time or other indulgence granted to any of the other Obligors under or in connection with any of the
Security Documents;
|
|
|
11.1.2
|
any amendment, variation, novation or replacement of any of the other Security Documents;
|
|
|
11.1.3
|
any failure of any of the Security Documents to be legal, valid, binding and enforceable in relation to any of the other Obligors for any reason;
|
|
|
11.1.4
|
the winding-up or dissolution of any of the other Obligors;
|
|
|
11.1.5
|
the release (whether in whole or in part) of, or the entering into of any compromise or composition with, any of the other Obligors; or
|
|
|
11.1.6
|
any other act, omission, thing or circumstance which would or might, but for this provision, operate to discharge, impair or otherwise affect the same.
|
|
|
11.2
|
Until the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, the Bareboat Charterer shall not by virtue of any payment made
under this Deed on account of the Secured Obligations or by virtue of any enforcement by the Assignee of its rights under, or the security constituted by, this Deed or by virtue of any relationship between or transaction involving, the Bareboat
Charterer and any of the other Obligors:
|
|
|
11.2.1
|
exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Assignee or any other person; or
|
8
|
|
11.2.2
|
exercise any right of contribution from any of the other Obligors under any of the Security Documents; or
|
|
|
11.2.3
|
exercise any right of set-off or counterclaim against any of the other Obligors; or
|
|
|
11.2.4
|
receive, claim or have the benefit of any payment, distribution, security or indemnity from any of the other Obligors; or
|
|
|
11.2.5
|
unless so directed by the Assignee (when the Bareboat Charterer will prove in accordance with such directions), claim as a creditor of any of the other Obligors in
competition with the Assignee
|
and the Bareboat Charterer shall hold in trust for the Assignee and forthwith pay
or transfer (as appropriate) to the Assignee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
The
Bareboat Charterer shall reimburse the Assignee on demand for the charges and expenses (including the fees and expenses of legal advisors and value added tax or any similar tax thereon) incurred by it and/or the Assignee in connection with the
enforcement of, or the preservation of, any rights under this Deed.
|
13
|
Waiver, Remedies Cumulative
|
No failure to
exercise and no delay in exercising on the part of the Assignee any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. No waiver by the Assignee shall be effective unless it is in writing.
The
rights and remedies of the Assignee provided herein are cumulative and not exclusive of any rights or remedies provided by law.
If any
provision of this Deed or any of the other Security Documents is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
Time is
of the essence in respect of all of the obligations of the Bareboat Charterer under this Deed provided however that the Assignee shall not be entitled to enforce its rights under the assignment contained in this Deed otherwise than in circumstances
which constitute an Event of Default.
9
This
Deed shall be binding upon the Bareboat Charterer and its successors and shall inure to the benefit of the Assignee and its successors, transferees and assigns.
|
|
14.2
|
Disclosure of information
|
The Assignee may disclose to a potential transferee or assignee or to any other person who may otherwise propose to enter into contractual
relations with any of them in relation to this Deed such information about the Bareboat Charterer as such Assignee shall consider appropriate subject always to the provisions of section 14.14 of the Credit Agreement where, for the purpose of this
Deed, references to “
Lender
” shall be read and construed as “
Beneficiary
”.
|
|
14.3
|
Contracts (Rights of Third Parties) Act 1999 (the “Act”)
|
A person who is not a party to this Deed has no right under the Act to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from
the Act.
Following
the expiry of the Charter Period and the satisfaction of all the Bareboat Charterer’s obligations under the Bareboat Charter and this Deed, the Assignee will, at the cost of and on the request of the Bareboat Charterer and so long as no Event
of Default shall then have occurred and be continuing, execute and deliver a re-assignment to the Bareboat Charterer of the Assigned Property, to the extent then still subsisting and capable of re-assignment.
All demands and
notices made or given hereunder shall be made or given in accordance with section 14.03 of the Credit Agreement (it being understood that for the purpose hereof, references to “any Credit Party” in such section 14.03 shall also apply to
the Bareboat Charterer).
This Deed
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 Deed.
|
18
|
Governing Law and Jurisdiction
|
18.1 This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
18.2
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
18.2.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
10
|
|
18.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 18.2 is for the benefit of the Assignee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
|
|
18.2.3
|
Neither the Owner nor the Bareboat Charterer may, without the Assignee’s prior written consent, terminate the appointment of the Process Agent; if the Process
Agent resigns or its appointment ceases to be effective, the Owner and/or the Bareboat Charterer shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Assignee to act as the Owner’s
and/or the Bareboat Charterer’s process agent with unconditional authority to receive and acknowledge service on behalf of the Owner and/or the Bareboat Charterer of all process or other documents connected with proceedings in the English
courts which relate to this Deed.
|
|
|
18.2.4
|
For the purpose of securing their obligations under Clause 18.2, each of the Owner and the Bareboat Charterer irrevocably agrees that, if it for any reason fails to
appoint a process agent within the period specified in Clause 18.2, the Assignee may appoint any person (including a company controlled by or associated with any of the Beneficiaries) to act as the Owner’s and/or the Bareboat Charterer’s
process agent in England with the unconditional authority described in Clause 18.2.
|
|
|
18.2.5
|
No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Owner or the Bareboat Charterer (as the case
may be) of the service of any process or to forward any process to the Owner and/or the Bareboat Charterer) shall invalidate any proceedings or judgment.
|
|
|
18.2.6
|
Each of the Owner and the Bareboat Charterer appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in
England of any legal proceedings with respect to this Deed.
|
|
|
18.2.7
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Owner and/or the Bareboat Charterer (as
the case may be) and may be enforced without review in any other jurisdiction.
|
|
|
18.2.8
|
Nothing in this Clause shall exclude or limit any right which the Assignee may have (whether under the laws of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
18.2.9
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
11
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
PRIDE OF HAWAII, LLC
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
NCL (BAHAMAS) LTD.
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact
|
|
)
|
|
in the presence of:
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact
|
|
)
|
|
in the presence of:
|
|
)
|
12
Schedule 1
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export
Finance
8 Canada Square
London E14
5HQ
Fax: +44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As trustee for:
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee
and agent)
13
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email:
shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
14
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
15
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
16
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As
trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee
and agent)
17
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email:
shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
18
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
As
trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee
and agent)
19
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
20
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
Fax: +5999 4652366
Attn: LAM/Eric Maduro
Email:
lam.curacao@dvbbank.com/james.neira@dvbbank.com
Part III
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email:
alan.p.marshall@hsbcib.com
As
trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
(as trustee
and agent)
21
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal
Republic of Germany
Fax: +49 69 1362 3742
Attn: Mr Klaus-Dieter Schmedding
Email: exportfinance@commerzbank.com
(as Hermes agent)
and the
following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
Fax: +49 40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email:
shipfinance@commerzbank.com
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
Fax:
+44 (0)20 7992 4428
Attn: Mr Alan Marshall
Email: alan.p.marshall@hsbcib.com
22
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
Fax:
+65 6536 6449/6532 5347
Attn: Ms Lee King Lan/Ms Elaine Lam
Email: LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
Fax:
+49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
23
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
Fax:
+49 69 74221 197
Attn: Mr Stephan Bachmann
Email: stephan.bachmann@ca-cib.com
with a copy
to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
Fax: +852 2868 1448
Attn: Mr Terence Yuen/Ms Iris
Lai
Email: terence.yuen@ca-cib.com/iris.lai@ca-cib.com
24
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended
and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22
482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
As trustee for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn:
Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
(as security agent and agent)
25
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
Fax: +49
40 3769 9649
Attn: Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
Email: shipfinance@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22
482020
Attn: Mrs Amra Koluder/Mrs Ursula Mack Tonjum
Email: amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax:
+49 69 7431 3768/2944
Attn: Mr Josef Schmid/Ms Claudia Wenzel
Email: josef.schmid@kfw.de/claudia.wenzel@kfw.de
26
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
Fax: +49 511 361 4785
Attn: Mr Torsten Reinecke
Email: shipping@nordlb.de
NORDEA BANK NORGE
ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax:
+47 22 484278
Attn: Mr Arne Berglund
Email: arne.berglund@nordea.com
BANK OF SCOTLAND PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax: +44 131 659 1194
Attn: Douglas Newton/Russell Parker
Email: douglas_newton@bankofscotland.co.uk
27
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
Fax: +49
40 3692 3696/+49 89 378 334 2832
Attn: Mr Peter-Alexander Wunner/Mr Michael McCarthy
Email: peter-alexander.wunner@unicreditgroup.de/michael.mccarthy@unicreditgroup.de
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
Fax: +49
421 3609 329
Attn: Dr Matthias Fischer
Email: matthias.fischer@schiffsbank.com
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
Fax: +47 85 407990
Attn: Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
Email: oivind.haraldsen@fokus.no/tore.braein@fokus.no
28
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 613741
Attn: Mr Carsten Dreyer
Email: carsten.dreyer@hsh-nordbank.com
Fax:
+1 212 407 6008
Attn: Ms Frauke Hay
Email: frauke.hay@hsh-nordbank.com
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40
Stockholm
Sweden
Fax:
+44 20 7236 5144
Attn: Mr Egil Aarrestad/Mr Malcolm Stonehouse
Email: egil.aarrestad@seb.co.uk/
malcolm.stonehouse@seb.co.uk
29
Schedule 4
EUR126,075,000 Credit Agreement dated November [
] 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax:
+49 69 7431 2944
Attn: Ship Finance, X2a4
Claudia Wenzel
Email:
Claudia.wenzel@kfw.de
As Trustee for
:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax:
+47 22 486668
Attn: Mr Arne Berglund
Email: arne.berglund@nordea.com
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
Fax: +49 40 3769 9649
Attn: Mr Marcus Weber
Ms Anne Randewig
Email:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Ms Amra Koluder
Mr Solveig N. Knoff
Email:
amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49
69 7431 2944
Attn: Ship Finance, X2a4
Claudia Wenzel
Email:
Claudia.wenzel@kfw.de
HSBC BANK PLC
8 Canada Square
London E14 5HQ
Fax: +44 207 992 4428
Attn: Alan P. Marshall
Email: alan.p.marshall@hsbcib.com
And each other Secured Creditor under and as defined in the Credit Agreement.
2
Schedule 5
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
NCL (BAHAMAS) LTD.
, a company incorporated in and existing under the laws of Bermuda whose registered office is at Milner House,
18 Parliament Street, Hamilton HM 12, Bermuda, the bareboat charterer of the motor vessel “NORWEGIAN JADE” (the
“Vessel”
), hereby give notice that by a fourth deed of assignment and subordination dated 2010, entered into
by us with (1)
PRIDE OF HAWAII, LLC
and (2)
KFW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for certain secured parties (the “
Assignee
”), and in consideration of
(a) certain secured parties making certain facilities available to the Owner pursuant to a credit agreement, any interest rate protection agreement and/or any other hedging agreement, (b) payment by the Assignee to us of ten Dollars
(USD10) and (c) other good and valuable consideration from the Assignee to us (the adequacy and receipt whereof we hereby acknowledge), and as security for payment of the obligations under the credit document and related agreements, we have
assigned, and granted a fourth priority security interest in and to, absolutely all our right and title to and interest in all insurances in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed.
Please note that this Notice may not be revoked or varied without the prior written consent of the Assignee.
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NCL (BAHAMAS) LTD.
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By:
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Title:
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Date:
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2010
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3
Schedule 6
To: [
ASSIGNEE
]
[ ]
as trustee
Dated: 2010
Dear Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
NCL (BAHAMAS) LTD. (the “Bareboat Charterer”)
We confirm that we have effected insurances for the account of the Bareboat Charterer as set out in Appendix “A” attached.
Pursuant to instructions received from the Bareboat Charterer and/or their authorised managers or agents and in consideration of your approving us as the appointed brokers in connection with the
insurances covered by this letter, we hereby undertake:
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1.
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to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause(s) set out in Appendix “B” attached; and
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2.
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to arrange for the said Loss Payable Clause(s) to be included on the policies when issued; and
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3.
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to have endorsed on each and every policy as and when the same is issued a Notice of Assignment in the form of Appendix “C” hereto dated and signed by the
Bareboat Charterer and acknowledged by underwriters in accordance with market practice; and
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4.
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to advise you promptly if we cease to be the brokers for the Bareboat Charterer or in the event of any material changes of which we are aware affecting the said
insurance; and
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5.
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following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Bareboat Charterer and/or their authorised managers or assignees, and in the event of our receiving instructions to renew to advise you promptly of the
details thereof; and
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6.
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to forward to you promptly any notices of cancellation that we receive from Underwriters; and
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7.
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following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary.
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4
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given
subject to our lien on the policies for premiums in respect of the Vessel only and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days
notice in writing either by letter or electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy
conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause(s) and the said
Notice of Assignment, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or salvage guarantee to be given in the event of bail being required in order to prevent the arrest of
the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the
guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in
accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
Yours faithfully
5
Appendix A to letter of undertaking
Details of insurances
6
Appendix B to letter of undertaking
Loss Payable Clause
It
is noted that, by a fourth deed of assignment and subordination in writing dated [
—
] 2010 collateral to a fourth priority statutory mortgage and deed of covenants both dated [
—
] 2010 (together the
“Mortgage”
),
PRIDE OF HAWAII, LLC
of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America (the
“Owner”
), owner of the vessel “NORWEGIAN JADE” (ex “PRIDE OF HAWAII”) (the
“Vessel”
), assigned to
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee
(the “
Assignee
”) this policy and all benefits of this policy, including all claims of any nature (including return of premiums) under this policy.
It is also noted that, by an assignment in writing [
—
] 2010,
NCL (BAHAMAS) LTD.
of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda (the
“Bareboat Charterer”
), the bareboat charterer of the Vessel pursuant to a bareboat charterparty dated 10 February 2008, assigned absolutely to the Assignee as fourth assignee all its interest in this policy and all benefits of
this policy, including all claims of any nature (including return of premiums) under this policy.
Claims payable under this policy in respect
of a total or constructive total or an arranged or agreed or compromised total loss or unrepaired damage and all claims which (in the opinion of the Assignee) are analogous thereto shall be payable to the Assignee up to the Assignee’s mortgage
interest.
Subject thereto, all other claims, unless and until underwriters have received notice from the Assignee of a default under the
Mortgage, in which event all claims under this policy shall be payable directly to the Assignee up to the Assignee’s mortgage interest, shall be payable as follows:
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(i)
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a claim in respect of any one casualty where the aggregate claim against all insurers does not exceed twenty million United States Dollars (USD20,000,000) or the
equivalent in any other currency, prior to adjustment for any franchise or deductible under the terms of the policy, shall be paid directly to the Bareboat Charterer for the repair, salvage or other charges involved or as a reimbursement if the
Bareboat Charterer has fully repaired the damage and paid all of the salvage or other charges;
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(ii)
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a claim in respect of any one casualty where the aggregate claim against all insurers exceeds twenty million United States Dollars (USD20,000,000) or the equivalent in
any other currency prior to adjustment for any franchise or deductible under the terms of the policy, shall, subject to the prior written consent of the Assignee, be paid to the Bareboat Charterer as and when the Vessel is restored to her former
state and condition and the liability in respect of which the insurance loss is payable is discharged, and provided that the insurers may with such consent make payment on account of repairs in the course of being effected, but, in the absence of
such prior written consent shall be payable directly to the Assignee.
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7
Appendix C to letter of undertaking
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
NCL (BAHAMAS) LTD.
, a company
incorporated in and existing under the laws of Bermuda whose registered office is at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda, the bareboat charterer of the motor vessel “NORWEGIAN JADE” (the
“Vessel”
),
hereby give notice that by a fourth deed of assignment and subordination dated [
—
] 2010, entered into by us with (1)
PRIDE OF HAWAII, LLC
and (2)
KFW IPEX-Bank GmbH
of
Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for certain secured parties (the “
Assignee
”), and in consideration of (a) certain secured parties making certain facilities available to the Owner pursuant to
a credit agreement, any interest rate protection agreement and/or any other hedging agreement, (b) payment by the Assignee to us of ten Dollars (USD10) and (c) other good and valuable consideration from the Assignee to us (the adequacy and
receipt whereof we hereby acknowledge), and as security for payment of the obligations under the credit document and related agreements, we have assigned, and granted a fourth priority security interest in and to, absolutely all our right and title
to and interest in all insurances in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed.
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NCL (BAHAMAS) LTD.
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By:
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Title:
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Date:
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2010
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8
Schedule 7
To: [
ASSIGNEE
]
[
]
as restructuring trustee (the
“Assignee
”)
Dated: 2010
Dear Sirs
m.v. “NORWEGIAN
JADE” (the “Vessel”)
PRIDE OF HAWAII, LLC (the “Owners”)
NCL (BAHAMAS) LTD. (the “Bareboat Charterers”)
We acknowledge receipt of notice of an assignment to the Assignee of the insurances on the Vessel. So far as this Association is concerned, the managers do not consent to such assignment for the purposes
of Rule [ ], other than to give efficacy to the Loss Payable Clause set out below and subject always to the Association’s right under Rule [ ].
We do confirm however that the Vessel is entered in this Association for Protection and Indemnity risks on the terms and conditions set out or to be set
out in the Certificate of Entry. Furthermore, in consideration of your agreeing to the entry or continuing entry of the Vessel in this Association, the managers agree:
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1.
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that neither the Bareboat Charterers nor the Owners shall cease to be insured by the Association in respect of the Vessel by reason of such assignment (see Rule
[ ]); and
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2.
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that, notwithstanding that the Vessel is mortgaged to the Assignee and that no undertaking or guarantee has been given to the Association to pay all contributions due
in respect of the Vessel, neither the Bareboat Charterers nor the Owners cease to be insured by reason of the operation of Rule [ ].
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It is further agreed that the following Loss Payable Clause will be included in the Certificate of Entry:
“Payment of any recovery the Bareboat Charterers are entitled to make out of the funds of the Association in respect of any liability, cost or expense incurred by them shall be made to the Bareboat
Charterers or their order unless and until the Association receives notice to the contrary from [
ASSIGNEE
] of
[ ] as
agent for itself and others pursuant to an assignment of insurances over the vessel “NORWEGIAN JADE” dated 2010 stating that a default has
occurred under the Mortgage dated 2010, in which event all recoveries shall thereafter be paid to the said [
ASSIGNEE
] as agent or its order;
provided always that no liability whatsoever shall attach to the Association, its Managers or their Assignees for failure to comply with the latter obligation until after the expiry of two (2) clear business days from the receipt of such
notice.”
The Association undertakes:
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1.
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to inform you if the Directors give the Bareboat Charterers notice under Rule [ ] that their insurance in the Association in respect of the
Vessel is to cease at the end of the then current policy year; and
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2.
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to give you fourteen (14) days’ notice of the Association’s intention to cancel the insurance of the Bareboat Charterers by reason of their failure to
pay when due and demanded any sum due from them to the Association.
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Yours faithfully
10
Schedule 8
Notice of Assignment
Corporation Trust Center
1209 Orange Street
Wilmington
Delaware 19801
United States of America
Dear
Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
We, the bareboat charterer of the Vessel under the bareboat charter dated 10 February 2008 made between you and us in respect of the Vessel (the
“Bareboat Charter”
), hereby give you
notice that by a fourth deed of assignment and subordination dated 2010 we assigned to
KFW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325
Frankfurt am Main, Germany as trustee for certain secured parties (the “
Assignee
”) all our right and title to and interest in the Bareboat Charter.
Will you please acknowledge receipt of this letter by signing and returning one (1) copy to us and one (1) copy to the Assignee with the endorsement below duly completed.
Dated 2010
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NCL (BAHAMAS) LTD.
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By:
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Title:
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11
Acknowledgement
Milner House
18
Parliament Street
Hamilton HM 12
Bermuda
Dear Sirs
m.v. “NORWEGIAN JADE” (the “Vessel”)
We, the undersigned, the owner
of the Vessel under a charterparty dated 10 February 2008, hereby acknowledge receipt of the above notice and in consideration of the payment by you of ten United States Dollars (USD10) and other good and valuable consideration, the receipt and
sufficiency of which we hereby acknowledge, we hereby (1) confirm that we have not previously received notice of any such assignment other than a first assignment, second assignment and third assignment and (2) consent to the assignment
referred to in the above notice.
Dated 2010
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PRIDE OF HAWAII, LLC
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By:
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Title:
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12
Exhibit 10.61
EXECUTION COPY
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
€126,075,000
CREDIT AGREEMENT
among
NCL CORPORATION LTD.,
as Parent,
NORWEGIAN JEWEL LIMITED,
as Borrower,
VARIOUS LENDERS,
KFW IPEX-BANK GMBH,
as Facility Agent and Collateral Agent,
NORDEA BANK NORGE ASA,
as Documentation Agent,
and
COMMERZBANK AKTIENGESELLSCHAFT,
as Hermes Agent
Dated
November 18, 2010
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
DNB NOR BANK ASA,
HSBC BANK PLC,
KFW IPEX-BANK GMBH
and
NORDEA BANK NORGE ASA,
as Joint Lead Arrangers
TABLE OF CONTENTS
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Page
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SECTION 1.
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Definitions and Accounting Terms
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1
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1.01
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Defined Terms
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2
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SECTION 2.
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Amount and Terms of Credit Facility
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31
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2.01
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The Commitments
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31
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2.02
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Amount and Timing of Each Borrowing; Currency of Disbursements
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32
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2.03
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Notice of Borrowing
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32
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2.04
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Disbursement of Funds
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33
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2.05
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Pro Rata Borrowings
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34
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2.06
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Interest
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34
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2.07
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Interest Periods
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35
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2.08
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Increased Costs, Illegality, Market Disruption, etc.
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36
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2.09
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Indemnification; Breakage Costs
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38
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2.10
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Change of Lending Office; Limitation on Additional Amounts
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39
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2.11
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Replacement of Lenders
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39
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2.12
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Disruption to Payment Systems, Etc.
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40
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SECTION 3.
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Commitment Commission; Fees; Reductions of Commitment
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41
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3.01
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Commitment Commission
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41
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3.02
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Voluntary Reduction or Termination of Commitments
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41
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3.03
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Mandatory Reduction of Commitments
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41
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SECTION 4.
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Prepayments; Repayments; Taxes
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42
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4.01
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Voluntary Prepayments
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42
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4.02
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Mandatory Repayments and Commitment Reductions
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43
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4.03
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Method and Place of Payment
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44
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4.04
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Net Payments; Taxes
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44
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4.05
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Application of Proceeds
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45
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SECTION 5.
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Conditions Precedent to the Initial Borrowing Dates
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47
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5.01
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Effective Date
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47
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5.02
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Intercreditor Agreement
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47
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5.03
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Corporate Documents; Proceedings; etc.
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47
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5.04
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Know Your Customer
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48
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5.05
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Construction Contract and Other Material Agreements
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48
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5.06
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Assignment of Contracts
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48
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5.07
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Collateral and Guaranty Requirements
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49
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5.08
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Consents Under Existing Credit Facilities
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50
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5.09
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Process Agent
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50
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5.10
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Equity Payment
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50
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5.11
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Financing Statements
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50
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(i)
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5.12
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Opinions of Counsel
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50
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5.13
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Security Trust Deed
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52
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5.14
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Litigation
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52
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SECTION 6.
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Conditions Precedent to each Borrowing Date
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52
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6.01
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No Default; Representations and Warranties
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52
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6.02
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Consents
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52
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6.03
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Refund Guarantees
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52
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6.04
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ECF Payment
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53
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6.05
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Fees, Costs, etc.
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53
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6.06
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Construction Contract
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54
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6.07
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Hermes Cover
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54
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6.08
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Notice of Borrowing
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54
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6.09
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Solvency Certificate
|
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54
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6.10
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Litigation
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54
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SECTION 7.
|
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Conditions Precedent to each Delivery Date
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55
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7.01
|
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Delivery of Vessel
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55
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7.02
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Evidence of 90% Payment
|
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55
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7.03
|
|
Hermes Compliance; Compliance with Applicable Laws and Regulations
|
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55
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|
|
SECTION 8.
|
|
Representations and Warranties
|
|
|
55
|
|
|
8.01
|
|
Entity Status
|
|
|
55
|
|
|
8.02
|
|
Power and Authority
|
|
|
56
|
|
|
8.03
|
|
No Violation
|
|
|
56
|
|
|
8.04
|
|
Governmental Approvals
|
|
|
56
|
|
|
8.05
|
|
Financial Statements; Financial Condition
|
|
|
56
|
|
|
8.06
|
|
Litigation
|
|
|
57
|
|
|
8.07
|
|
True and Complete Disclosure
|
|
|
57
|
|
|
8.08
|
|
Use of Proceeds
|
|
|
57
|
|
|
8.09
|
|
Tax Returns and Payments
|
|
|
57
|
|
|
8.10
|
|
No Material Misstatements
|
|
|
57
|
|
|
8.11
|
|
The Security Documents
|
|
|
58
|
|
|
8.12
|
|
Capitalization
|
|
|
58
|
|
|
8.13
|
|
Subsidiaries
|
|
|
58
|
|
|
8.14
|
|
Compliance with Statutes, etc.
|
|
|
59
|
|
|
8.15
|
|
Winding-up, etc.
|
|
|
59
|
|
|
8.16
|
|
No Default
|
|
|
59
|
|
|
8.17
|
|
Pollution and Other Regulations
|
|
|
59
|
|
|
8.18
|
|
Ownership of Assets
|
|
|
60
|
|
|
8.19
|
|
Concerning the Collateral Vessel
|
|
|
60
|
|
|
8.20
|
|
Citizenship
|
|
|
60
|
|
|
8.21
|
|
Collateral Vessel Classification
|
|
|
61
|
|
|
8.22
|
|
No Immunity
|
|
|
61
|
|
|
8.23
|
|
Fees, Governing Law and Enforcement
|
|
|
61
|
|
|
8.24
|
|
Form of Documentation
|
|
|
61
|
|
(ii)
|
|
|
|
|
|
|
|
|
8.25
|
|
Pari Passu or Priority Status
|
|
|
61
|
|
|
8.26
|
|
Solvency
|
|
|
61
|
|
|
8.27
|
|
No Undisclosed Commissions
|
|
|
61
|
|
|
8.28
|
|
Completeness of Documentation
|
|
|
62
|
|
|
8.29
|
|
Money Laundering
|
|
|
62
|
|
|
|
|
|
|
SECTION 9.
|
|
Affirmative Covenants
|
|
|
62
|
|
|
9.01
|
|
Information Covenants
|
|
|
62
|
|
|
9.02
|
|
Books and Records; Inspection
|
|
|
64
|
|
|
9.03
|
|
Maintenance of Property; Insurance
|
|
|
64
|
|
|
9.04
|
|
Corporate Franchises
|
|
|
65
|
|
|
9.05
|
|
Compliance with Statutes, etc.
|
|
|
65
|
|
|
9.06
|
|
Hermes Cover
|
|
|
65
|
|
|
9.07
|
|
End of Fiscal Years
|
|
|
65
|
|
|
9.08
|
|
Performance of Obligations
|
|
|
65
|
|
|
9.09
|
|
Payment of Taxes
|
|
|
66
|
|
|
9.10
|
|
Further Assurances
|
|
|
66
|
|
|
9.11
|
|
Ownership of Subsidiaries
|
|
|
66
|
|
|
9.12
|
|
Consents and Registrations
|
|
|
66
|
|
|
9.13
|
|
Flag of Collateral Vessel
|
|
|
67
|
|
|
9.14
|
|
“Know Your Customer” and Other Similar Information
|
|
|
67
|
|
|
|
|
|
|
SECTION 10.
|
|
Negative Covenants
|
|
|
67
|
|
|
10.01
|
|
Liens
|
|
|
67
|
|
|
10.02
|
|
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc.
|
|
|
69
|
|
|
10.03
|
|
Dividends
|
|
|
70
|
|
|
10.04
|
|
Advances, Investments and Loans
|
|
|
71
|
|
|
10.05
|
|
Transactions with Affiliates
|
|
|
71
|
|
|
10.06
|
|
Free Liquidity
|
|
|
73
|
|
|
10.07
|
|
Total Net Funded Debt to Total Capitalization
|
|
|
73
|
|
|
10.08
|
|
Collateral Maintenance
|
|
|
73
|
|
|
10.09
|
|
Consolidated EBITDA to Consolidated Debt Service
|
|
|
74
|
|
|
10.10
|
|
Business; Change of Name
|
|
|
74
|
|
|
10.11
|
|
Subordination of Indebtedness
|
|
|
74
|
|
|
10.12
|
|
Activities of Borrower, etc.
|
|
|
74
|
|
|
10.13
|
|
Material Amendments or Modifications of Construction Contracts
|
|
|
75
|
|
|
10.14
|
|
No Place of Business
|
|
|
75
|
|
|
|
|
|
|
SECTION 11.
|
|
Events of Default
|
|
|
75
|
|
|
11.01
|
|
Payments
|
|
|
75
|
|
|
11.02
|
|
Representations, etc.
|
|
|
75
|
|
|
11.03
|
|
Covenants
|
|
|
75
|
|
|
11.04
|
|
Default Under Other Agreements
|
|
|
76
|
|
|
11.05
|
|
Bankruptcy, etc.
|
|
|
76
|
|
|
11.06
|
|
Total Loss
|
|
|
77
|
|
|
11.07
|
|
Security Documents
|
|
|
77
|
|
(iii)
|
|
|
|
|
|
|
|
|
11.08
|
|
Guaranties
|
|
|
78
|
|
|
11.09
|
|
Judgments
|
|
|
78
|
|
|
11.10
|
|
Cessation of Business
|
|
|
78
|
|
|
11.11
|
|
Revocation of Consents
|
|
|
78
|
|
|
11.12
|
|
Unlawfulness
|
|
|
78
|
|
|
11.13
|
|
Insurances
|
|
|
79
|
|
|
11.14
|
|
Disposals
|
|
|
79
|
|
|
11.15
|
|
Government Intervention
|
|
|
79
|
|
|
11.16
|
|
Change of Control
|
|
|
79
|
|
|
11.17
|
|
Material Adverse Change
|
|
|
79
|
|
|
11.18
|
|
Repudiation of Construction Contract or other Material Documents
|
|
|
79
|
|
|
|
|
|
|
SECTION 12.
|
|
Agency and Security Trustee Provisions
|
|
|
80
|
|
|
12.01
|
|
Appointment and Declaration of Trust
|
|
|
80
|
|
|
12.02
|
|
Nature of Duties
|
|
|
80
|
|
|
12.03
|
|
Lack of Reliance on the Agents
|
|
|
81
|
|
|
12.04
|
|
Certain Rights of the Agents
|
|
|
81
|
|
|
12.05
|
|
Reliance
|
|
|
81
|
|
|
12.06
|
|
Indemnification
|
|
|
82
|
|
|
12.07
|
|
The Agents in their Individual Capacities
|
|
|
82
|
|
|
12.08
|
|
Resignation by an Agent
|
|
|
82
|
|
|
12.09
|
|
The Joint Lead Arrangers
|
|
|
83
|
|
|
12.10
|
|
Impaired Agent
|
|
|
83
|
|
|
12.11
|
|
Replacement of an Agent
|
|
|
84
|
|
|
12.12
|
|
Resignation by the Hermes Agent
|
|
|
84
|
|
|
|
|
|
|
SECTION 13.
|
|
Benefit of Agreement
|
|
|
85
|
|
|
13.01
|
|
Assignments and Transfers by the Lenders
|
|
|
85
|
|
|
13.02
|
|
Assignment or Transfer Fee
|
|
|
86
|
|
|
13.03
|
|
Assignments and Transfers to Hermes
|
|
|
86
|
|
|
13.04
|
|
Limitation of Responsibility to Existing Lenders
|
|
|
86
|
|
|
13.05
|
|
[Intentionally Omitted]
|
|
|
87
|
|
|
13.06
|
|
Procedure and Conditions for Transfer
|
|
|
87
|
|
|
13.07
|
|
Procedure and Conditions for Assignment
|
|
|
88
|
|
|
13.08
|
|
Copy of Transfer Certificate or Assignment Agreement to Parent
|
|
|
89
|
|
|
13.09
|
|
Security over Lenders’ Rights
|
|
|
89
|
|
|
13.10
|
|
Assignment by a Credit Party
|
|
|
89
|
|
|
13.11
|
|
Lender Participations
|
|
|
90
|
|
|
13.12
|
|
Increased Costs
|
|
|
90
|
|
|
|
|
|
|
SECTION 14.
|
|
Miscellaneous
|
|
|
90
|
|
|
14.01
|
|
Payment of Expenses, etc.
|
|
|
90
|
|
|
14.02
|
|
Right of Set-off
|
|
|
91
|
|
|
14.03
|
|
Notices
|
|
|
92
|
|
|
14.04
|
|
No Waiver; Remedies Cumulative
|
|
|
93
|
|
|
14.05
|
|
Payments Pro Rata
|
|
|
93
|
|
(iv)
|
|
|
|
|
|
|
|
|
14.06
|
|
Calculations; Computations
|
|
|
93
|
|
|
14.07
|
|
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
|
|
|
94
|
|
|
14.08
|
|
Counterparts
|
|
|
95
|
|
|
14.09
|
|
Effectiveness
|
|
|
95
|
|
|
14.10
|
|
Headings Descriptive
|
|
|
95
|
|
|
14.11
|
|
Amendment or Waiver; etc.
|
|
|
95
|
|
|
14.12
|
|
Survival
|
|
|
96
|
|
|
14.13
|
|
Domicile of Loans
|
|
|
97
|
|
|
14.14
|
|
Confidentiality
|
|
|
97
|
|
|
14.15
|
|
Register
|
|
|
97
|
|
|
14.16
|
|
Third Party Rights
|
|
|
98
|
|
|
14.17
|
|
Judgment Currency
|
|
|
98
|
|
|
14.18
|
|
Language
|
|
|
98
|
|
|
14.19
|
|
Waiver of Immunity
|
|
|
98
|
|
|
14.20
|
|
“Know Your Customer” Notice
|
|
|
99
|
|
|
14.21
|
|
Release of Liens and the Parent Guaranty; Flag Jurisdiction Transfer
|
|
|
99
|
|
|
14.22
|
|
Partial Invalidity
|
|
|
100
|
|
|
|
|
|
|
SECTION 15.
|
|
Parent Guaranty
|
|
|
100
|
|
|
15.01
|
|
Guaranty and Indemnity
|
|
|
100
|
|
|
15.02
|
|
Continuing Guaranty
|
|
|
100
|
|
|
15.03
|
|
Reinstatement
|
|
|
101
|
|
|
15.04
|
|
Waiver of Defenses
|
|
|
101
|
|
|
15.05
|
|
Guarantor Intent
|
|
|
101
|
|
|
15.06
|
|
Immediate Recourse
|
|
|
102
|
|
|
15.07
|
|
Appropriations
|
|
|
102
|
|
|
15.08
|
|
Deferral of Guarantor’s Rights
|
|
|
102
|
|
|
15.09
|
|
Additional Security
|
|
|
103
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE 1.01(a)
|
|
|
-
|
|
|
Commitments
|
|
SCHEDULE 1.01(b)
|
|
|
-
|
|
|
Existing Jewel Scheduled Repayments
|
|
SCHEDULE 1.01(c)
|
|
|
-
|
|
|
Mandatory Costs
|
|
SCHEDULE 5.06
|
|
|
-
|
|
|
Notices, Acknowledgments and Consents
|
|
SCHEDULE 5.12
|
|
|
-
|
|
|
Initial Borrowing Date Required Opinion Items
|
|
SCHEDULE 6.10
|
|
|
-
|
|
|
Material Litigation
|
|
SCHEDULE 8.03
|
|
|
-
|
|
|
Existing Agreements
|
|
SCHEDULE 8.12
|
|
|
-
|
|
|
Capitalization
|
|
SCHEDULE 8.13
|
|
|
-
|
|
|
Subsidiaries
|
|
SCHEDULE 8.19
|
|
|
-
|
|
|
Collateral Vessel
|
|
SCHEDULE 8.21
|
|
|
-
|
|
|
Approved Classification Societies
|
|
SCHEDULE 9.03
|
|
|
-
|
|
|
Required Insurances
|
|
SCHEDULE 10.01
|
|
|
-
|
|
|
Existing Liens
|
|
SCHEDULE 14.03A
|
|
|
-
|
|
|
Credit Party Addresses
|
|
SCHEDULE 14.03B
|
|
|
-
|
|
|
Lender Addresses
|
(v)
|
|
|
|
|
|
|
|
|
EXHIBIT A
|
|
|
-
|
|
|
Form of Notice of Borrowing
|
|
EXHIBIT B
|
|
|
-
|
|
|
Form of BankAssure Report
|
|
EXHIBIT C
|
|
|
-
|
|
|
Form of Insurance Broker Certificate
|
|
EXHIBIT D
|
|
|
-
|
|
|
Form of Secretary’s Certificate
|
|
EXHIBIT E
|
|
|
-
|
|
|
Form of Transfer Certificate
|
|
EXHIBIT F
|
|
|
-
|
|
|
Form of Assignment of Earnings
|
|
EXHIBIT G
|
|
|
-
|
|
|
Form of Assignment of Insurances
|
|
EXHIBIT H
|
|
|
-
|
|
|
Form of Deed of Covenants
|
|
EXHIBIT I-1
|
|
|
-
|
|
|
Form of Vessel 1 Assignment of Contracts
|
|
EXHIBIT I-2
|
|
|
-
|
|
|
Form of Vessel 2 Assignment of Contracts
|
|
EXHIBIT J
|
|
|
-
|
|
|
Form of Solvency Certificate
|
|
EXHIBIT K
|
|
|
-
|
|
|
Form of Assignment Agreement
|
|
EXHIBIT L
|
|
|
-
|
|
|
Form of Compliance Certificate
|
|
EXHIBIT M-1
|
|
|
-
|
|
|
Form of Tranche A Intercreditor Agreement
|
|
EXHIBIT M-2
|
|
|
-
|
|
|
Form of Tranche B Intercreditor Agreement
|
|
EXHIBIT M-3
|
|
|
-
|
|
|
Form of Jewel Intercreditor Agreement
|
|
EXHIBIT N
|
|
|
-
|
|
|
Form of Security Trust Deed
|
|
EXHIBIT O-1
|
|
|
-
|
|
|
Form of Vessel 1 Assignment of KfW Refund Guarantee
|
|
EXHIBIT O-2
|
|
|
-
|
|
|
Form of Vessel 2 Assignment of KfW Refund Guarantee
|
(vi)
THIS CREDIT AGREEMENT, is made by way of deed November 18, 2010, among NCL CORPORATION
LTD., a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”), NORWEGIAN JEWEL LIMITED, an Isle of Man company with its registered office as of
the date hereof at International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles (the “
Borrower
”), the Lenders party hereto from time to time, KFW IPEX-BANK GMBH, as Facility Agent (in such
capacity, the “
Facility Agent
”) and as Collateral Agent under the Security Documents (in such capacity, the “
Collateral Agent
”), NORDEA BANK NORGE ASA, as Documentation Agent (in such capacity, the
“
Documentation Agent
”), COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent (in such capacity, the “
Hermes Agent
”), and each of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, DNB NOR BANK ASA, HSBC BANK PLC, KFW IPEX-BANK
GMBH and NORDEA BANK NORGE ASA, each in their capacity as joint lead arranger in respect of the credit facility provided for herein (together, the “
Joint Lead Arrangers
”). All capitalized terms used herein and defined in
Section 1 are used herein as therein defined.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a multi-draw term loan
credit facility (the “
Jewel Term Loan Facility
”) pursuant to which Loans may be incurred to finance, in part, the construction and acquisition costs of the New Vessels and the related Hermes Premium;
WHEREAS, Pride of Hawaii, LLC, a Delaware limited liability company (the “
Jade Borrower
”), the Parent, the lenders from
time to time party thereto, the Facility Agent, the Collateral Agent, the Documentation Agent and the Hermes Agent have entered into that certain credit agreement (as amended, amended and restated, supplemented, novated or otherwise modified from
time to time, the “
Other Term Loan Facility
” and collectively with the Jewel Term Loan Facility, the “
Term Loan Facilities
”) dated as of the date hereof pursuant to which loans thereunder may be incurred to finance,
in part, the construction and acquisition cost of the New Vessels and the related Hermes Premium;
WHEREAS, the Lenders and
the lenders under the Other Term Loan Facility have agreed to commit to provide the Term Loan Facilities in an aggregate principal amount of up to €126,075,000 subject to and upon the terms and conditions set forth herein and in the Other Term
Loan Facility; and
WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are willing to make
available to the Borrower the Jewel Term Loan Facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1.
Definitions and Accounting Terms
.
1.01
Defined Terms
. As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined) and references to this Agreement or any other document (or to any specified provision of this Agreement or any other document)
shall be construed as references to this Agreement, that provision or that document as from time to time amended, restated, supplemented and/or novated:
“
Acceptable Bank
” means (a) a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A2
or higher by Moody's or a comparable rating from an internationally recognized credit rating agency; or (b) any other bank or financial institution approved by each Agent.
“
Acceptable Flag Jurisdiction
” shall mean the Bahamas, Bermuda, Panama, the Marshall Islands, the United States or such
other flag jurisdiction as may be acceptable to the Required Lenders in their reasonable discretion.
“
Acquisition
” means any transaction or series of related transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Capital Stock of any Person or
otherwise causing any Person to become a Subsidiary of a Borrower, or (c) a merger, amalgamation or consolidation or any other combination with another Person.
“
Adjusted Construction Price
” shall mean, for each New Vessel, the sum of the Initial Construction Price of such New Vessel and the total permitted increases to the Initial Construction
Price of such New Vessel pursuant to Permitted Change Orders (it being understood that the Final Construction Price may exceed the Adjusted Construction Price).
“
Affiliate
” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person;
provided
,
however
, that for purposes of Section 10.05, an Affiliate of the Parent or any of its Subsidiaries, as applicable, shall include any Person that directly or indirectly owns more than 10% of any class of the Capital Stock
of the Parent or such Subsidiary, as applicable, and any officer or director of the Parent or such Subsidiary. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary contained above, for purposes of Section 10.05, neither the
Facility Agent, nor the Collateral Agent, nor the Joint Lead Arrangers nor any Lender (or any of their respective affiliates) shall be deemed to constitute an Affiliate of the Parent or its Subsidiaries in connection with the Credit Documents or its
dealings or arrangements relating thereto.
“
Affiliate Transaction
” shall have the meaning provided in
Section 10.05.
“
Agent
” or “
Agents
” shall mean, individually and collectively, the
Facility Agent, the Collateral Agent, the Delegate Collateral Agent, the Documentation Agent and the Hermes Agent.
“
Agreement
” shall mean this Credit Agreement, as modified, supplemented, amended, restated or novated from time to time.
-2-
“
Aggregate Initial Construction Price
” shall mean the sum of the Initial
Construction Price for Vessel 1 and the Initial Construction Price for Vessel 2.
“
Apollo
” shall mean Apollo
Management, L.P., and its Affiliates.
“
Applicable Margin
” shall mean a percentage per annum equal to 1.60%.
“
Appraised Value
” of the Collateral Vessel at any time shall mean the average of the fair market value of
the Collateral Vessel on an individual charter free basis as set forth on the appraisals most recently delivered to, or obtained by, the Facility Agent prior to such time pursuant to Section 9.01(c).
“
Approved Appraisers
” shall mean Brax Shipping AS; Barry Rogliano Salles S.A., Paris; Clarksons, London; R.S. Platou
Shipbrokers, A.S., Oslo; and Fearnsale, a division of Astrup Fearnley AS, Oslo.
“
Approved Stock Exchange
”
shall mean the New York Stock Exchange, NASDAQ or such other stock exchange in the United States of America, the United Kingdom or Hong Kong as is approved in writing by the Facility Agent or, in each case, any successor thereto.
“
Assignment Agreement
” shall mean an Assignment Agreement substantially in the form of Exhibit K (appropriately
completed) or any other form agreed between the relevant assignor and assignee (and if required to be executed by the Borrower, the Borrower);
provided
that if such other form does not contain the undertaking set out in Clause 7 of Exhibit K
it shall not be a Creditor Accession Undertaking as defined in, and for the purposes of, the ECF Intercreditor Agreements.
“
Assignments of Contracts
” shall have the meaning provided in Section 5.06(b).
“
Assignment of Earnings
” shall have the meaning provided in the definition of “Collateral and Guaranty
Requirements”.
“
Assignment of Insurances
” shall have the meaning provided in the definition of
“Collateral and Guaranty Requirements”.
“
Assignments of KfW Refund Guarantees
” shall have the
meaning provided in Section 5.06(b).
“
Bankruptcy Code
” shall have the meaning provided in
Section 11.05(b).
“
Basel II
” shall mean the “International Convergence of Capital Measurement and
Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
“
Borrower
” shall have the meaning provided in the first paragraph of this Agreement.
-3-
“
Borrowing
” shall mean the borrowing of Loans from all the Lenders (other
than any Lender which has not funded its share of a Borrowing in accordance with this Agreement) having Commitments on a given date.
“
Borrowing Date
” shall have the meaning provided in Section 2.02.
“
Breakaway One
” shall mean Breakaway One, Ltd., a Bermuda company.
“
Breakaway One Facility
” shall mean that certain Credit Agreement dated as of the date hereof among the Parent as guarantor, Breakaway One as borrower, various lenders party thereto, KfW
IPEX-Bank GmbH, as facility agent, collateral agent and CIRR agent, Nordea Bank Norge ASA, as documentation agent, and Commerzbank AG, as Hermes agent.
“
Breakaway Two
” shall mean Breakaway Two, Ltd., a Bermuda company.
“
Breakaway Two Facility
” shall mean that certain Credit Agreement dated as of the date hereof among the Parent as guarantor, Breakaway Two as borrower, various lenders party thereto, KfW
IPEX-Bank GmbH, as facility agent, collateral agent and CIRR agent, Nordea Bank Norge ASA, as documentation agent, and Commerzbank AG, as Hermes agent.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am Main or Norway a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to close.
“
Capital Stock
” means:
(1) in the case of a corporation, corporate stock or shares;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“
Cash
Balance
” shall mean, at any date of determination, the unencumbered and otherwise unrestricted cash and Cash Equivalents of the NCLC Group.
“
Cash Equivalents
” shall mean (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (
provided
that
the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is
the principal banking subsidiary of a bank holding company having capital, surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by any Person,
(iii) repurchase obligations with a term of not more than 90 days for underlying
-4-
securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least B-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by any other
Person, and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
“
CERCLA
” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may
be amended from time to time, 42 U.S.C. § 9601
et
seq.
“
Change of Control
”
shall mean (x) at any time when the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) is not listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing
shareholders of the Parent by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Permitted Holders in the aggregate do not, directly or indirectly, control the Parent and beneficially own, directly or indirectly,
at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or (y) at any time following the listing of the ordinary Capital Stock of the Parent (or a parent company of the Parent in a Qualified IPO) on an Approved Stock
Exchange:
|
|
(A)
|
owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Parent; or
|
|
|
(B)
|
has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the
Parent; and
|
at the same time as any of the events described in paragraphs (A) or (B) of this
definition have occurred and are continuing, the Permitted Holders in the aggregate do not, directly or indirectly, beneficially own at least 51% of the issued Capital Stock of, and Equity Interest in, the Parent; or
|
|
(ii)
|
the Parent (or such parent company of the Parent) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Required Lenders,
|
(and, for the purpose of Section 11.16 “control” of any company, limited partnership or other legal entity (a
“body corporate”) controlled by a Permitted Holder means that one or more members of a Permitted Holder in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through
the ownership of more than 50% of the issued voting capital of that body corporate or by contract, trust or other arrangement).
-5-
“
Collateral
” shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Earnings and Insurance Collateral, the Construction Risk Insurances in respect of each New
Vessel, the Collateral Vessel, the Refund Guarantees in respect of each New Vessel, the Construction Contracts in respect of each New Vessel and all cash and Cash Equivalents at any time delivered as collateral thereunder or as collateral required
hereunder.
“
Collateral Agent
” shall have the meaning provided in the first paragraph of this agreement, and
shall include any successor thereto acting as mortgagee, security trustee or collateral agent for the Secured Creditors pursuant to the Security Documents.
“
Collateral and Guaranty Requirements
” shall mean with respect to the Collateral Vessel, the requirement that:
(i) the Borrower shall have duly authorized, executed and delivered an Assignment of Earnings substantially in the form of Exhibit F or otherwise reasonably acceptable to the Joint Lead Arrangers (as
modified, supplemented or amended from time to time, the “
Assignment of Earnings
”) and an Assignment of Insurances substantially in the form of Exhibit G or otherwise reasonably acceptable to the Joint Lead Arrangers (as modified,
supplemented or amended from time to time, the “
Assignment of Insurances
”), in each case (to the extent incorporated into or required by such Exhibits or otherwise agreed by the Borrower and the Joint Lead Arrangers) with
appropriate notices, acknowledgements and consents relating thereto, together covering all of the Borrower’s present and future Earnings and Insurance Collateral, in each case together with:
(a) proper financing statements (Form UCC-1 or the equivalent) fully prepared for filing in accordance with the UCC or in
other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or give notice to third parties of, as the case may be, the security interests purported to be
created by the Assignment of Earnings and the Assignment of Insurances; and
(b) certified copies of lien
search results (Form UCC11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida, together with Form UCC-3 Termination Statements (or such other termination
statements as shall be required by local law) fully prepared for filing if required by applicable law to terminate financing statement which covers the Collateral except to the extent evidencing Permitted Liens.
(ii) the Borrower shall have duly authorized, executed and delivered, and caused to be registered in the appropriate vessel registry a
mortgage and a deed of covenants (as modified, amended or supplemented from time to time in accordance with the terms thereof and hereof, and together with the Vessel Mortgage delivered pursuant to the definition of Flag Jurisdiction Transfer, the
“
Vessel Mortgage
”), substantially in the form of Exhibit H or otherwise reasonably acceptable to the Joint Lead Arrangers with respect to the Collateral
-6-
Vessel, and the Vessel Mortgage shall be effective to create in favor of the Collateral Agent a legal, valid and enforceable security interest, in and Lien upon the Collateral Vessel, which shall
be prior to any other Liens and security interest in the Collateral Vessel other than Permitted Liens (which Permitted Liens shall include, for the avoidance of doubt, the Liens pursuant to the Senior Loan Agreements);
(iii) all filings, deliveries of notices and other instruments and other actions by the Credit Parties and/or the Collateral Agent
necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve the security interests described in clauses (i) through and including (iii) above shall have been duly effected and the Collateral Agent shall
have received evidence thereof in form and substance reasonably satisfactory to the Collateral Agent; and
(iv) the Facility
Agent shall have received each of the following:
(a) certificates of ownership from appropriate authorities
showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of the Collateral Vessel by the Borrower; and
(b) the results of maritime registry searches with respect to the Collateral Vessel, indicating that the Collateral Vessel has been deleted from all new building registers and that there are no record
liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens; and
(c) class
certificates reasonably satisfactory to it from Det Norske Veritas or another classification society listed on Schedule 8.21 hereto (or another internationally recognized classification society reasonably acceptable to the Facility Agent),
indicating that the Collateral Vessel meets the criteria specified in Section 8.21; and
(d) certified
copies of all Management Agreements; and
(e) certified copies of all ISM and ISPS Code documentation for the
Collateral Vessel; and
(f) the Facility Agent shall have received a report, in substantially the form of
Exhibit B or otherwise reasonably acceptable to the Facility Agent, from BankAssure or another firm of independent marine insurance brokers reasonably acceptable to the Facility Agent with respect to the insurance maintained (or to be maintained) by
the Credit Parties in respect of the Collateral Vessel, together with a certificate in substantially the form of Exhibit C or otherwise reasonably acceptable to the Facility Agent, from another broker certifying that such insurances (i) are
placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds and (ii) include the Required Insurance. In
addition, the Borrower shall reimburse the Facility Agent for the reasonable and documented costs of procuring customary mortgagee interest insurance and additional perils insurance in connection with the Collateral Vessel as contemplated by
Section 9.03 (including Schedule 9.03).
-7-
“
Collateral Disposition
” shall mean (i) the sale, lease, transfer or
other disposition of the Collateral Vessel by the Borrower to any Person (it being understood that a Permitted Chartering Arrangement is not a Collateral Disposition) or the sale of 100% of the Capital Stock of the Borrower or (ii) any Event of
Loss of the Collateral Vessel.
“
Collateral Vessel
” shall mean the vessel owned by the Borrower and known on
the date hereof as the NORWEGIAN JEWEL (IMO 9304045).
“
Commitment
” shall mean, for each Lender, at any time,
an amount equal to such Lender’s Percentage of the Total Allocable Commitments. The maximum Commitment of each Lender on the Effective Date is set forth on Schedule 1.01(a).
“
Commitment Letter
” shall have the meaning provided in Section 14.09.
“
Commitment Termination Date
” shall mean December 8, 2014.
“
Commitment Commission
” shall have the meaning provided in Section 3.01(a).
“
Consolidated Debt Service
” shall mean, for any relevant period, the sum (without double counting), determined in
accordance with GAAP, of:
(i) the aggregate principal payable or paid during such period on any Indebtedness
for Borrowed Money of any member of the NCLC Group, other than:
(a) principal of any such Indebtedness for
Borrowed Money prepaid at the option of the relevant member of the NCLC Group or by virtue of “cash sweep” or “special liquidity” cash sweep provisions (or analogous provisions) in any debt facility of the NCLC Group;
(b) principal of any such Indebtedness for Borrowed Money prepaid upon a sale or an Event of Loss of any vessel owned or
leased under a capital lease by any member of the NCLC Group; and
(c) balloon payments of any such
Indebtedness for Borrowed Money payable during such period (and for the purpose of this paragraph (c) a “balloon payment” shall not include any scheduled repayment installment of such Indebtedness for Borrowed Money which forms part
of the balloon);
(ii) Consolidated Interest Expense for such period;
(iii) the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues
to any shareholder of any member of the NCLC Group (other than the Parent, or one of its wholly owned Subsidiaries) or any Dividends other than the tax distributions described in Section 10.03(ii) in each case paid during such period; and
-8-
(iv) all rent under any capital lease obligations by which the Parent, or
any consolidated Subsidiary is bound which are payable or paid during such period and the portion of any debt discount that must be amortized in such period,
as calculated in accordance with GAAP and derived from the then latest consolidated unaudited financial statements of the NCLC Group delivered to the Facility Agent in the case of any period ending at the
end of any of the first three fiscal quarters of each fiscal year of the Parent and the then latest audited consolidated financial statements (including all additional information and notes thereto) of the Parent and its consolidated Subsidiaries
together with the auditors’ report delivered to the Facility Agent in the case of the final quarter of each such fiscal year.
“
Consolidated EBITDA
” shall mean, for any relevant period, the aggregate of:
(i) Consolidated Net Income from the Parent’s operations for such period; and
(ii) the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest
Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for such period.
“
Consolidated Interest Expense
” shall mean, for any relevant period, the consolidated interest expense (excluding capitalized interest) of the NCLC Group for such period.
“
Consolidated Net Income
” shall mean, for any relevant period, the consolidated net income (or loss) of the NCLC Group
for such period as determined in accordance with GAAP.
“
Construction Contract
” shall mean the Vessel 1
Construction Contract and/or the Vessel 2 Construction Contract, as applicable.
“
Construction Risk
Insurances
” shall mean any and all insurance policies related to a Construction Contract and the construction of a New Vessel.
“
Credit Documents
” shall mean this Agreement, Sections 7 and 8 of the Commitment Letter, each Security Document, the Security Trust Deed, any Transfer Certificate, any Assignment
Agreement, each Intercreditor Agreement and, after the execution and delivery thereof, each additional guaranty or additional security document executed pursuant to Section 9.10.
“
Credit Document Obligations
” shall mean, except to the extent consisting of obligations, liabilities or indebtedness
with respect to Interest Rate Protection Agreements or Other Hedging Agreements, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest, fees and indemnities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other
-9-
action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for
post-petition interest is allowed in any such proceeding)) of each Credit Party to the Lender Creditors (
provided
, in respect of the Lender Creditors which are Lenders, such aforementioned obligations, liabilities and indebtedness shall arise
only for such Lenders (in such capacity) in respect of Loans and/or Commitments), whether now existing or hereafter incurred under, arising out of, or in connection with this Agreement and the other Credit Documents to which such Credit Party is a
party (including, in the case of each Credit Party that is a Guarantor, all such obligations, liabilities and indebtedness of such Credit Party under the Parent Guaranty) and the due performance and compliance by such Credit Party with all of the
terms, conditions and agreements contained in this Agreement and in such other Credit Documents.
“
Credit
Party
” shall mean the Borrower, the Parent, each Subsidiary of the Parent that owns a direct interest in the Borrower, until the Vessel 1 Delivery Date, Breakaway One and, until the Vessel 2 Delivery Date, Breakaway Two.
“
Default
” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event
of Default.
“
Defaulting Lender
” shall mean any Lender with respect to which a Lender Default is in effect.
“
Delegate Collateral Agent
” shall mean Deutsche Schiffsbank Aktiengesellschaft in its capacity as trustee
for the Secured Creditors with respect to the Trust Property Delegated (as defined in the Security Trust Deed) pursuant to the Security Trust Deed.
“
Delivery Date
” shall mean the Vessel 1 Delivery Date and/or the Vessel 2 Delivery Date, as applicable.
“
Discharged Rights and Obligations
” shall have the meaning provided in Section 13.06(c).
“
Dispute
” shall have the meaning provided in Section 14.07(a).
“
Disqualified Stock
” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it
is redeemable or exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale),
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock of such Person, or
(3) is redeemable at the option of the holder thereof, in whole or in part (other than solely as a result of a change of control or asset sale), in each case prior to 91 days after the later of the
Tranche A Loan Maturity Date and the Tranche B Loan Maturity Date;
provided
,
however
, that only the portion of Capital Stock which so matures or is
-10-
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided
,
however
, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Parent in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided
,
further
, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified
Stock.
“
Disruption Event
” means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each
case, required to operate in order for payments to be made in connection with this Agreement (or otherwise in order for the transactions contemplated by the Credit Documents to be carried out) which disruption is not caused by, and is beyond the
control of, any of the parties to this Agreement; or
(b) the occurrence of any other event which results in a
disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this Agreement preventing such party, or any other party to this Agreement:
(i) from performing its payment obligations under the Credit Documents; or
(ii) from communicating with other parties to this Agreement in accordance with the terms of the Credit Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations
are disrupted.
“
Dividend
” shall mean, with respect to any Person, that such Person or any Subsidiary of such
Person has declared or paid a dividend or returned any equity capital to its stockholders, partners or members or the holders of options or warrants issued by such Person with respect to its Capital Stock or membership interests or authorized or
made any other distribution, payment or delivery of property (other than common stock or the right to purchase any of such stock of such Person) or cash to its stockholders, partners or members or the holders of options or warrants issued by such
Person with respect to its Capital Stock or membership interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its Capital Stock or any other Capital Stock
outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Capital Stock or other Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the Capital Stock or any other Equity Interests of such Person outstanding on or after the Effective Date (or any options or warrants issued by such Person
with respect to its Capital Stock or other Equity Interests). Without
-11-
limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights,
plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes.
“
Documentation Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any
successor thereto.
“
Dollars
” and the sign “
$
” shall each mean lawful money of the United
States.
“
Dollar Availability
” shall mean, on any Borrowing Date, a Dollar amount equal to the excess of:
(x) the aggregate principal amount of Existing Jewel Loans that the Borrower has repaid from and after the
Effective Date and up to and including such Borrowing Date as determined pursuant to the schedule of repayments of Existing Jewel Loans as set forth on
Schedule 1.01(b)
(“
Existing Jewel Scheduled Repayments
”) (subject to
Dollar-to-Dollar reduction to the extent the Borrower shall not have made the Existing Jewel Scheduled Repayments as of such Borrowing Date);
provided
that such amount may be increased by the amount of voluntary and mandatory prepayments
(other than of the Existing Jewel Scheduled Repayments) of Existing Jewel Loans that the Borrower has made on or prior to such Borrowing Date in 2011, 2012, 2013 and 2014, minus
(y) the Dollar amount of Loans borrowed prior to such Borrowing Date under this Agreement.
“
Dollar Maximum Amount
” shall mean $94,576,192.83, or such greater amount as shall be agreed in writing by the Facility
Agent, Hermes and the Parent.
“
Dollar Equivalent
” shall mean, with respect to the Euro denominated
Commitments being utilized on a Borrowing Date, the amount calculated by applying (x) in the event that the Borrower and/or the Parent have entered into Earmarked Foreign Exchange Arrangements with respect to the installment payment to be
partially or wholly financed by the Loans to be disbursed on such Borrowing Date, the EUR/USD weighted average rate with respect to such Borrowing Date (i) as notified by the Borrower to the Facility Agent in the Borrowing Notice at least three
Business Days prior to the relevant Borrowing Date, (ii) which EUR/USD weighted average rate for any particular set of Earmarked Foreign Exchange Arrangements shall take account of all applicable foreign exchange spot, forward and derivative
arrangements, including collars, options and the like, entered into in respect of such Borrowing Date and (iii) for which the Borrower has provided evidence to the Facility Agent to determine which foreign exchange arrangements (including spot
transactions) will be the Earmarked Foreign Exchange Arrangements that shall apply to such Borrowing Date and (y) in the event that the Borrower and/or the Parent have not entered into Earmarked Foreign Exchange Arrangements with respect to the
installment payment to be partially or wholly funded by the Loans to be disbursed on such Borrowing Date, the Spot Rate applicable to such Borrowing Date.
-12-
“
Dormant Subsidiary
” means a Subsidiary that owns assets in an amount equal
to no more than $5,000,000 or is dormant or otherwise inactive.
“
Earmarked Foreign Exchange Arrangements
”
shall mean the Euro/Dollar foreign exchange arranged by the Borrower and/or the Parent in connection with an installment payment to be partially or wholly financed by the Loans to be disbursed on the date on which such installment payment is to be
made.
“
Earnings and Insurance Collateral
” shall mean all “Earnings” and “Insurances”, as
the case may be, as defined in the respective Assignment of Earnings and the Assignment of Insurances.
“
ECF
Borrowers
” shall mean Breakaway One with respect to the Breakaway One Facility and Breakaway Two with respect to the Breakaway Two Facility.
“
ECF Collateral
” shall mean all property (whether real or personal) with respect to which any security interest shall have been granted (or purported to be granted) pursuant to the
Assignments of Contracts.
“
ECF Loans
” shall mean loans made to an ECF Borrower under the relevant Export
Credit Facility.
“
ECF Intercreditor Agreements
” shall mean the Tranche A Intercreditor Agreement and the
Tranche B Intercreditor Agreement.
“
Effective Date
” has the meaning specified in Section 14.09.
“
Eligible Transferee
” shall mean and include a commercial bank, insurance company, financial institution,
fund or other Person which regularly purchases interests in loans or extensions of credit of the types made pursuant to this Agreement.
“
Environmental Approvals
” shall have the meaning provided in Section 8.17(b).
“
Environmental Claims
” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or
violation, relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “
Claims
”), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.
“
Environmental Law
” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation,
ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any
judicial or
-13-
administrative order, consent decree or judgment, to the extent binding on the Parent or any of its Subsidiaries, relating to the environment, and/or Hazardous Materials, including, without
limitation, CERCLA; OPA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et
seq.
; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et
seq.
; the Occupational Safety and Health Act,
29 U.S.C. § 651
et
seq.
(to the extent it regulates occupational exposure to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“
Environmental Release
” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing or migration into the environment.
“
Equity Interests
” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“
Euro
” and the sign “
€
” shall each mean single currency in the member states of the European Communities that adopt or have adopted the Euro as its lawful currency
under the legislation of the European Union for European Monetary Union.
“
Eurodollar Rate
” shall mean with
respect to each Interest Period for a Loan, the offered rate (rounded upward to the nearest 1/100 of 1%) for deposits of Dollars for a period equivalent to such period at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the
first day of such period as is displayed on Reuters LIBOR 01 Page (or such other service as may be nominated by the British Bankers’ Association as the information vendor for displaying the London Interbank Offered Rates of major banks in the
London Interbank Market) (the “
Screen Rate
”),
provided
that if on such date no such rate is so displayed, the Eurodollar Rate for such period shall be the arithmetic average (rounded upward to the nearest 1/100 of 1%) of the
rate quoted to the Facility Agent by the Reference Banks for deposits of Dollars in an amount approximately equal to the amount in relation to which the Eurodollar Rate is to be determined for a period equivalent to such applicable Interest Period
by the prime banks in the London interbank Eurodollar market at or about 11:00 A.M. (Frankfurt time) on the second Business Day before the first day of such period, in each case rounded upward to the nearest 1/100 of 1%.
“
Event of Default
” shall have the meaning provided in Section 11.
“
Event of Loss
” shall mean any of the following events: (x) the actual or constructive total loss of the Collateral
Vessel or the agreed or compromised total loss of the Collateral Vessel; or (y) the capture, condemnation, confiscation, requisition (but excluding any requisition for hire by or on behalf of any government or governmental authority or agency
or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency), purchase, seizure or forfeiture of, or any taking of title to, the Collateral Vessel. An Event of Loss shall be deemed to have
occurred: (i) in the event of an actual loss of the Collateral Vessel, at the time and on the date of such loss or if such time and date are not known at noon Greenwich Mean Time on the date which the Collateral Vessel was last heard from;
(ii) in the event of damage which results in a constructive or compromised or arranged
-14-
total loss of the Collateral Vessel, at the time and on the date on which notice claiming the loss of the Collateral Vessel is given to the insurers; or (iii) in the case of an event
referred to in clause (y) above, at the time and on the date on which such event is expressed to take effect by the Person making the same. Notwithstanding the foregoing, if the Collateral Vessel shall have been returned to the Borrower or any
Subsidiary of the Borrower following any event referred to in clause (y) above prior to the date upon which payment is required to be made under Section 4.02(b) hereof, no Event of Loss shall be deemed to have occurred by reason of such
event so long as the requirements set forth in Section 9.10 have been satisfied.
“
Excluded Taxes
” shall
have the meaning provided in Section 4.04(a).
“
Existing Jewel Facility
” shall mean that certain secured
loan agreement dated 20 April 2004 between the Borrower, the several banks party thereto as arrangers and underwriters, the several banks party thereto as lenders, HSBC Bank plc as agent, Commerzbank Aktiengesellschaft as Hermes agent and HSBC
Bank plc as trustee, including all amendments, amendments and restatements, supplements, novations or other modifications thereto.
“
Existing Jewel Loans
” shall mean all loans and other advances made to the Borrower under the Existing Jewel Facility.
“
Existing Jewel Scheduled Repayments
” shall have the meaning provided in the definition of “Dollar
Availability”.
“
Existing Lender
” shall have the meaning provided in Section 13.01.
“
Export Credit Documents
” shall mean the “Credit Documents” as defined in the Export Credit Facilities.
“
Export Credit Facilities
” shall mean the Breakaway One Facility and the Breakaway Two Facility.
“
Facility Agent
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any
successor thereto.
“
Facility Office
” means (a) in respect of a Lender, the office or offices notified
by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations
under this Agreement; or (b) in respect of any other Lender Creditor, the office in the jurisdiction in which it is resident for tax purposes.
“
Final Construction Price
” shall mean the actual final construction price of a New Vessel.
“
Flag Jurisdiction Transfer
” shall mean the transfer of the registration and flag of the Collateral Vessel from one Acceptable Flag Jurisdiction to another Acceptable Flag Jurisdiction,
provided
that the following conditions are satisfied with respect to such transfer:
-15-
(i) On each Flag Jurisdiction Transfer Date, the Borrower shall have duly
authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry a Vessel Mortgage that is reasonably satisfactory in form and substance to the Facility Agent with respect to the Collateral Vessel and such Vessel
Mortgage shall be effective to create in favor of the Collateral Agent and/or the Lenders a legal, valid and enforceable first priority security interest, in and lien upon the Collateral Vessel, subject only to Permitted Liens. All filings,
deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Collateral Agent to perfect and preserve such security interests shall have been duly effected and the Collateral Agent shall have received evidence
thereof in form and substance reasonably satisfactory to the Collateral Agent.
(ii) On each Flag Jurisdiction
Transfer Date, to the extent that any Security Documents are released or discharged pursuant to Section 14.21(b), the Borrower shall have duly authorized, executed and delivered corresponding Security Documents in favor of the Collateral Agent
for the new Acceptable Flag Jurisdiction.
(iii) On each Flag Jurisdiction Transfer Date, the Facility Agent
shall have received from counsel, an opinion addressed to the Facility Agent and each of the Lenders and dated such Flag Jurisdiction Transfer Date, which shall (x) be in form and substance reasonably acceptable to the Facility Agent and
(y) cover the recordation of the security interests granted pursuant to the Vessel Mortgage to be delivered on such date and such other matters incident thereto as the Facility Agent may reasonably request.
(iv) On each Flag Jurisdiction Transfer Date:
(A) The Facility Agent shall have received (x) certificates of ownership from appropriate authorities showing (or
confirmation updating previously reviewed certificates and indicating) the registered ownership of the Collateral Vessel transferred on such date by the Borrower and (y) the results of maritime registry searches with respect to the Collateral
Vessel transferred on such date, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders and Permitted Liens.
(B) The Facility Agent shall have received a report, in form and scope reasonably satisfactory to the Facility Agent, from a firm of independent marine insurance brokers reasonably acceptable to the
Facility Agent with respect to the insurance maintained by the Borrower in respect of the Collateral Vessel transferred on such date, together with a certificate from another broker certifying that such insurances (i) are placed with such
insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Facility Agent and/or the Lenders as mortgagee
and (ii) conform with the Required Insurance applicable to the Collateral Vessel.
-16-
(v) On or prior to each Flag Jurisdiction Transfer Date, the Facility Agent
shall have received a certificate, dated the Flag Jurisdiction Transfer Date, signed by any one of the chairman of the board, the president, any vice president, the treasurer or an authorized manager, member, general partner, officer or
attorney-in-fact of the Borrower, certifying that (A) all necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the Flag Jurisdiction Transfer being consummated on such date and otherwise
referred to herein shall have been obtained and remain in effect or that no such approvals and/or consents are required, (B) there exists no judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions
upon such Flag Jurisdiction Transfer or the other related transactions contemplated by this Agreement and (C) copies of resolutions approving the Flag Jurisdiction Transfer of the Borrower and any other related matters the Facility Agent may
reasonably request.
(vi) On each Flag Jurisdiction Transfer Date, the Collateral and Guaranty Requirements for
the Transferred Collateral Vessel shall have been satisfied or waived by the Facility Agent for a specific period of time.
“
Flag Jurisdiction Transfer Date
” shall mean the date on which a Flag Jurisdiction Transfer occurs.
“
Free Liquidity
” shall mean, at any date of determination, the aggregate of the Cash Balance and any Commitments under
this Agreement or any other amounts available for drawing under other revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would
not, if drawn, be repayable within six months.
“
GAAP
” shall have the meaning provided in
Section 14.06(a).
“
Grace Period
” shall have the meaning provided in Section 11.05(c).
“
Guarantor
” shall mean Parent.
“
Hazardous Materials
” shall mean: (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,”
or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under
Environmental Laws.
“
Hermes
” shall mean the Federal Republic of Germany represented by the Federal Ministry
of Economics and Technology (
Bundesministerium für Wirtschaft und Technologie
) represented by Euler Hermes Kreditversicherungs-AG and PriceWaterhouseCoopers Wirtschaftsprüfungsgesellschaft AG.
-17-
“
Hermes Agent
” shall have the meaning provided in the first paragraph of
this Agreement, and shall include any successor thereto, acting as attorney-in-fact for the Lenders with respect to the Hermes Cover to the extent described in this Agreement.
“
Hermes Cover
” shall mean the export credit guarantee (
Exportkreditgarantie
) on the terms of Hermes’ Declaration of Guarantee
(
Gewährleistungs-Erklärung
) for [*] of the principal amount of the Loans and any interests and secondary financing costs of the Federal Republic of Germany acting through Euler Hermes Kreditversicherungs-AG for the period of the
Loans on the terms and conditions applied for by the Lenders, and shall include any successor thereto (it being understood that the Hermes Cover shall be issued on the basis of Hermes’ applicable Hermes guidelines (
Richtlinien
) and
general terms and conditions (
Allgemeine Bedingungen
)).
“
Hermes Insurance Premium
” shall mean the
amount payable in Euro by the Borrower and the Jade Borrower to Hermes through the Hermes Agent in respect of the Hermes Cover relating to the Term Loan Facilities, which shall not in the aggregate for the Jewel Term Loan Facility and the Other Term
Loan Facility exceed [*].
“
Hermes Issuing Fees
” shall mean the [*] payable in Euro by the Borrower to Hermes
through the Hermes Agent by way of handling fees in respect of the Hermes Cover.
“
Hermes Premium
” shall mean
the aggregate of the Hermes Issuing Fees and the Hermes Insurance Premium.
“
Impaired Agent
” shall mean an
Agent at any time when:
|
|
(i)
|
it has failed to make (or has notified a party to this Agreement that it will not make) a payment required to be made by it under the Credit Documents by the due date
for payment;
|
|
|
(ii)
|
such Agent otherwise rescinds or repudiates a Credit Document;
|
|
|
(iii)
|
(if such Agent is also a Lender) it is a Defaulting Lender; or
|
|
|
(iv)
|
an Insolvency Event has occurred and is continuing with respect to such Agent
|
unless, in the case of paragraph (i) above: (a) its failure to pay is caused by administrative or technical error or a Disruption Event, and payment is made within five Business Days of its due
date; or (b) such Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
“
Indebtedness
” shall mean any obligation for the payment or repayment of money, whether as principal or as surety and
whether present or future, actual or contingent including, without limitation, pursuant to an Interest Rate Protection Agreement or Other Hedging Agreement.
-18-
“
Indebtedness for Borrowed Money
” shall mean Indebtedness (whether present
or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of:
|
|
(i)
|
moneys borrowed or raised;
|
|
|
(ii)
|
the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing);
|
|
|
(iii)
|
the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases;
|
|
|
(iv)
|
the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of 180 days;
|
|
|
(v)
|
all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and
|
|
|
(vi)
|
(without double counting) any guarantee of Indebtedness falling within paragraphs (i) to (v) above;
|
provided
that the following shall not constitute Indebtedness for Borrowed Money:
|
|
(a)
|
loans and advances made by other members of the NCLC Group which are subordinated to the rights of the Lenders;
|
|
|
(b)
|
loans and advances made by any shareholder of the Parent which are subordinated to the rights of the Lenders on terms reasonably satisfactory to the Facility Agent; and
|
|
|
(c)
|
any liabilities of the Parent or any other member of the NCLC Group under any Interest Rate Protection Agreement or any Other Hedging Agreement or other derivative
transactions of a non-speculative nature.
|
“
Information
” shall have the meaning provided in
Section 8.10(a).
“
Initial Borrowing Dates
” shall mean the Tranche A Initial Borrowing Date and the
Tranche B Initial Borrowing Date.
“
Initial Construction Price
” shall mean for each New Vessel an amount of
up to €615,000,000 for the construction of such New Vessel in each case pursuant to the relevant Construction Contract, payable by the relevant ECF Borrower to the Yard through the four installments of the Initial Contract
Price referred to in Article 8, Clauses 2.1(i) through and including (iv) of each Construction Contract (each, a “
Pre-delivery Installment
”) and the installment of the Initial Contract Price referred to
in Article 8, Clause 2.1(v) of each Construction Contract.
“
Insolvency Event
” in relation to any
of the parties to this Agreement shall mean that such party:
-19-
|
|
(i)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(ii)
|
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
|
(iii)
|
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
|
(iv)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it
in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
|
(v)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or
entity not described in paragraph (iv) above and (a) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or (b) is not dismissed,
discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
|
(vi)
|
has exercised in respect of it one or more of the stabilization powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency
proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
|
|
(vii)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(viii)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets;
|
|
|
(ix)
|
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
-20-
|
|
(x)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in
paragraphs (i) to (ix) above; or
|
|
|
(xi)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
“
Intercreditor Agreements
” shall mean the Jewel Intercreditor Agreement and the ECF Intercreditor Agreements.
“
Interest Determination Date
” shall mean, with respect to any Loan, the second Business Day prior to the
commencement of any Interest Period relating to such Loan.
“
Interest Period
” shall have the meaning provided
in Section 2.07.
“
Interest Rate Protection Agreement
” shall mean any interest rate swap agreement,
interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its
Affiliate, and the Parent and/or the Borrower in relation to the Credit Document Obligations of the Borrower under this Agreement.
“
Investments
” shall have the meaning provided in Section 10.04.
“
Jewel Collateral
” shall mean all Collateral other than the ECF Collateral.
“
Jewel Intercreditor Agreement
” shall mean the fourth deed of co-ordination between the Borrower, HSBC Bank plc as first mortgagee, DnB NOR Bank ASA as second mortgagee, DnB NOR Bank
ASA as third mortgagee and the Facility Agent as fourth mortgagee, substantially in the form of Exhibit M-3 or otherwise agreed by the parties thereto.
“
Jewel Term Loan Facility
” shall have the meaning provided in the recitals hereto.
“
Joint Lead Arrangers
” shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
“
Lender
” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person which becomes a
“
Lender
” hereunder pursuant to Section 13.
“
Lender Creditors
” shall mean the Lenders
holding from time to time outstanding Loans and/or Commitments, and the Agents, each in their respective capacities.
-21-
“
Lender Default
” shall mean, as to any Lender, (i) the wrongful
refusal (which has not been retracted) of such Lender or the failure of such Lender to make available its portion of any Borrowing, unless such failure to pay is caused by administrative or technical error or a Disruption Event and payment is made
within three Business Days of its due date; (ii) such Lender having been deemed insolvent or having become the subject of a takeover by a regulatory authority or with respect to which an Insolvency Event has occurred and is continuing;
(iii) such Lender having notified the Facility Agent and/or any Credit Party (x) that it does not intend to comply with its obligations under Section 2.01 in circumstances where such non-compliance would constitute a breach of such
Lender’s obligations under such Section or (y) of the events described in preceding clause (ii); or (iv) if such Lender is a lender under an Export Credit Facility, such Lender not being in compliance with its refinancing obligations
under its respective “Refinancing Agreement” under and as defined in either Export Credit Facility.
“
Lien
” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing);
provided
that in no event shall an operating lease be deemed to constitute a Lien.
“
Lim Family
” shall mean:
(i) the late Tan Sri Lim Goh Tong;
(ii) his spouse;
(iii) his direct lineal descendants;
(iv) the personal estate of any of the above persons; and
(v) any trust created for the benefit of one or more of the above persons and their estates.
“
Loan
” shall have the meaning provided in Section 2.01.
“
Management Agreements
” shall mean any agreements entered into by the Borrower with the Manager or such other commercial
manager and/or a technical manager (in each case reasonably acceptable to the Facility Agent, it being understood that NCL (Bahamas) Ltd. is acceptable) with respect to the management of the Collateral Vessel.
“
Manager
” shall mean the company providing commercial and technical management and crewing services for the Collateral
Vessel pursuant to the Management Agreements, which as of the first Initial Borrowing Date is NCL (Bahamas) Ltd., a company organized and existing under the laws of Bermuda.
“
Mandatory Costs
” means the percentage rate per annum calculated in accordance with
Schedule 1.01(c)
.
-22-
“
Market Disruption Event
” shall mean:
(i) at or about noon on the Interest Determination Date for the relevant Interest Period the Screen Rate is not available
and none or only one of the Lenders supplies a rate to the Facility Agent to determine the Eurodollar Rate for the relevant Interest Period; or
(ii) before 5:00 P.M. Frankfurt time on the Interest Determination Date for the relevant Interest Period, the Facility Agent receives notifications from Lenders the sum of whose Commitments and/or
outstanding Loans at such time equal at least 50% of the sum of the Total Allocable Commitment and/or aggregate outstanding Loans of the Lenders at such time that (x) the cost to such Lenders of obtaining matching deposits in the London
interbank Eurodollar market for the relevant Interest Period would be in excess of the Eurodollar Rate for such Interest Period or (y) such Lenders are unable to obtain funding in the London interbank Eurodollar market.
“
Material Adverse Effect
” shall mean the occurrence of anything since June 30, 2010 which has had or would
reasonably be expected to have a material adverse effect on (x) the property, assets, business, operations, liabilities, or condition (financial or otherwise) of the Parent and its subsidiaries taken as a whole, (y) the consummation of the
transactions hereunder, the acquisition of a New Vessel and the relevant Construction Contract, or (z) the rights or remedies of the Lenders, or the ability of the Parent and its relevant Subsidiaries to perform their obligations owed to the
Lenders and the Agents under this Agreement.
“
Materials of Environmental Concern
” shall have the meaning
provided in Section 8.17(a).
“
Moody’s
” shall mean Moody’s Investors Service, Inc. and its
successors.
“
NCLC Fleet
” shall mean the vessels owned by the companies in the NCLC Group.
“
NCLC Group
” shall mean the Parent and its Subsidiaries.
“
New Lender
” shall mean a Person who has been assigned the rights or transferred the rights and obligations of an
Existing Lender, as the case may be, pursuant to the provisions of Section 13.
“
New Vessels
” shall mean
Vessel 1 and Vessel 2.
“
Non-Defaulting Lender
” shall mean and include each Lender other than a Defaulting
Lender.
“
Notice of Borrowing
” shall have the meaning provided in Section 2.03.
“
Notice Office
” shall mean (x) in the case of the Facility Agent, the office of the Facility Agent located at
Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, Attention: Ship Finance, X2a4, Claudia Wenzel, fax: +49 69 7431 2944, email: claudia.wenzel@kfw.de or such other office as the Facility Agent may hereafter designate in writing as such
to the other parties hereto and (y) in the case of the Hermes Agent, the office of
-23-
the Hermes Agent located at Kaiserplatz / Kaiserstr. 16, D-60311 Frankfurt am Main, Germany, Attention: Corporate Banking, Structured Export & Trade Finance, Klaus-Dieter Schmedding,
fax: +49 69 136 23742, email Klaus-dieter.schmedding@commerzbank.com (with an additional copy to exportfinance@commerzbank.com) or such other office as the Hermes Agent may hereafter designate in writing as such to the other parties hereto.
“
OPA
” shall mean the Oil Pollution Act of 1990, as amended, 33 U.S.C. § 2701
et
seq.
“
Other Creditors
” shall mean any Lender or any Affiliate thereof and their successors, transferees and
assigns if any (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason), together with such Lender's or Affiliate's successors, transferees and assigns with which the Parent and/or the Borrower enters into any
Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Other Hedging Agreement
”
shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Lead Arranger or its Affiliates, and the Parent and/or
the Borrower in relation to the Credit Document Obligations of the Borrower under this Agreement and designed to protect against the fluctuations in currency or commodity values.
“
Other Obligations
” shall mean the full and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Credit Party at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) owing by any Credit Party to the Other Creditors under, or with respect to
any Interest Rate Protection Agreement or Other Hedging Agreement, whether such Interest Rate Protection Agreement or Other Hedging Agreement is now in existence or hereafter arising, and the due performance and compliance by such Credit Party with
all of the terms, conditions and agreements contained therein.
“
Other Term Loan Credit Documents
” shall mean
collectively, the “Credit Documents” as defined in the Other Term Loan Facility.
“
Other Term Loan
Facility
” shall have the meaning provided in the recitals hereto.
“
Parent
” shall have the meaning
provided in the first paragraph of this Agreement.
“
Parent Guaranty
” shall mean the guaranty of the Parent
pursuant to Section 15.
“
PATRIOT Act
” shall have the meaning provided in Section 14.09.
“
Payment Date
” shall mean the last Business Day of each December, March, June and September, commencing with
December, 2010.
-24-
“
Payment Office
” shall mean the office of the Facility Agent located at
Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, or such other office as the Facility Agent may hereafter designate in writing as such to the other parties hereto.
“
Percentage
” for each Lender shall equal the percentage set forth opposite each Lender’s name on Schedule 1.01(a) hereto as such percentage may be adjusted from time to time as a
result of assignments and/or transfers to or from such Lender pursuant to Sections 2.11 or 13.04(b).
“
Permitted
Change Orders
” shall mean change orders and similar arrangements under a Construction Contract which increase the relevant Initial Construction Price to the extent that the aggregate amount of such increases does not exceed [*] of such
Initial Construction Price (it being understood that the actual amount of change orders and similar arrangements may exceed [*] of such Initial Construction Price).
“
Permitted Chartering Arrangements
” shall mean:
|
|
(i)
|
any charter or other form of deployment (other than a demise or bareboat charter) of the Collateral Vessel made between members of the NCLC Group;
|
|
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(ii)
|
any demise or bareboat charter of the Collateral Vessel made between members of the NCLC Group provided that (a) each of the Borrower and the charterer assigns the
benefit of any such charter or sub-charter to the Collateral Agent, (b) each of the Borrower and the charterer assigns its interest in the insurances and earnings in respect of the Collateral Vessel to the Collateral Agent, and (c) the
charterer agrees to subordinate its interests in the Collateral Vessel to the interests of the Collateral Agent as mortgagee of the Collateral Vessel, all on terms and conditions reasonably acceptable to the Collateral Agent;
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(iii)
|
any charter or other form of deployment of the Collateral Vessel to a charterer that is not a member of the NCLC Group provided that no such charter or deployment shall
be made (a) on a demise or bareboat basis, or (b) for a period which, with the exercise of any options for extension, could be for longer than 13 months, or (c) other than at or about market rate at the time when the charter or
deployment is fixed; and
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(iv)
|
any charter or other form of deployment in respect of the Collateral Vessel entered into after the Effective Date and which is permissible under the provisions of any
financing documents relating to the Collateral Vessel.
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“
Permitted Holders
” shall mean
(i) the Lim Family (together or individually) and (ii) Apollo and any Person directly controlled by Apollo.
“
Permitted Liens
” shall have the meaning provided in Section 10.01.
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“
Person
” shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or political subdivision, department or instrumentality thereof.
“
Pre-delivery Installment
” shall have the meaning provided in the definition of Initial Construction Price.
“
Pro Rata Share
” shall have the definition provided in Section 4.05.
“
Projections
” shall mean any projections and any forward-looking statements (including statements with respect to booked business) of the NCLC Group furnished to the Lenders or the
Facility Agent by or on behalf of any member of the NCLC Group prior to the Effective Date.
“
Qualified IPO
”
means an initial public offering of the Parent or a parent company of the Parent in either case on an Approved Stock Exchange resulting in at least [*] of equity (x) in the case of an initial public offering by a parent company of the Parent,
being contributed to the Parent or (y) in the case of an initial public offering by the Parent, sold by the Parent.
“
Reference Banks
” shall mean each Joint Lead Arranger.
“
Refund Guarantee
” shall mean a refund guarantee arranged by the Yard in respect of a Pre-delivery Installment and
provided by one or more financial institutions contemplated by the relevant Construction Contract, or by other financial institutions reasonably satisfactory to the Joint Lead Arrangers, as credit support for the Yard’s obligations thereunder.
“
Register
” shall have the meaning provided in Section 14.15.
“
Relevant Obligations
” shall have the meaning provided in Section 13.07(c)(ii).
“
Replaced Lender
” shall have the meaning provided in Section 2.11.
“
Replacement Lender
” shall have the meaning provided in Section 2.11.
“
Representative
” shall have the meaning provided in Section 4.05(d).
“
Required Insurance
” shall have the meaning provided in Section 9.03.
“
Required Lenders
” shall mean, at any time, Non-Defaulting Lenders, the sum of whose outstanding
Commitments and/or principal amount of Loans at such time represent an amount greater than 66-
2
/
3
% of the sum of the Total Allocable Commitment (less the aggregate Commitments of all Defaulting Lenders at such time) and the aggregate principal amount of outstanding Loans (less the amount of
outstanding Loans of all Defaulting Lenders at such time).
“
S&P
” shall mean Standard &
Poor’s Rating Services, a division of the McGraw-Hill Companies, Inc., and its successors.
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“
Scheduled Repayment
” shall have the meaning provided in
Section 4.02(a).
“
Screen Rate
” shall have the meaning specified in the definition of Eurodollar Rate.
“
Secured Creditors
” shall mean the “Secured Creditors” as defined in the Security Documents.
“
Secured Obligations
” shall mean (i) the Credit Document Obligations, (ii) the Other Obligations,
(iii) any and all sums advanced by any Agent in order to preserve the Collateral or preserve the Collateral Agent’s security interest in the Collateral on behalf of the Lenders, (iv) in the event of any proceeding for the collection
or enforcement of any indebtedness, obligations or liabilities of the Credit Parties referred to in clauses (i) and (ii) above, after an Event of Default shall have occurred and be continuing, the expenses in connection with retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder on behalf of the Lenders, together with reasonable attorneys’ fees and
court costs, and (v) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under the Security Documents.
“
Security Documents
” shall mean, as applicable, the Assignments of Contracts, the Assignment of Earnings, the Assignment of Insurances, the Assignments of KfW Refund Guarantees, the
Vessel Mortgage, and, after the execution thereof, each additional security document executed pursuant to Sections 9.10 and/or 12.01(b).
“
Security Trust Deed
” shall mean the Security Trust Deed executed by, inter alia, the Borrower, the Guarantor, the Collateral Agent, the Facility Agent, the Original Secured Creditors (as
defined therein) and the Delegate Collateral Agent, and shall be substantially in the form of Exhibit N or otherwise reasonably acceptable to the Facility Agent.
“
Senior Loan Agreements
” shall have the meaning provided in the Jewel Intercreditor Agreement, and shall include any modifications, refinancings, replacements, novations and amendments
thereof.
“
Specified Requirements
” shall mean the requirements set forth in clauses (i)(A) and (i)(B)
(excluding, for the avoidance of doubt, clauses (i)(a) or (i)(b)), (ii) and (iv)(f) of the definition of “Collateral and Guaranty Requirements.”
“
Spot Rate
” shall mean the spot exchange rate quoted by the Facility Agent equal to the weighted average of the rates on the actual transactions of the Facility Agent on
the date two Business Days prior to the date of determination thereof (acting reasonably), which spot exchange rate shall be final and conclusive absent manifest error.
“
Subsidiary
” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by
such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50%
Equity Interest at the time.
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“
Supervision Agreements
” shall mean any agreements (if any) entered or to
be entered into between the Parent, as applicable, the Borrower and a Supervisor providing for the construction supervision of the relevant New Vessel, the terms and conditions of which shall be in form and substance reasonably satisfactory to the
Facility Agent.
“
Supervisor
” shall have the meaning provided in the Construction Contracts.
“
Tax Benefit
” shall have the meaning provided in Section 4.04(c).
“
Taxes
” and “
Taxation
” shall have the meaning provided in Section 4.04(a).
“
Term Loan Facilities
” shall have the meaning provided in the recitals hereto.
“
Test Period
” shall mean each period of four consecutive fiscal quarters then last ended, in each case taken as one
accounting period.
“
Third Party
” shall mean any Person or group of Persons acting in concert who or which
does not include a member of the Lim Family or Apollo.
“
Total Allocable Commitment
” shall mean, at any time,
an amount equal to 50% of the Total Commitment at such time;
provided
that, at any time and from time to time after the Effective Date, the Parent may reallocate portions of the then applicable Total Commitment between this Agreement and the
Other Term Loan Facility in its own discretion by giving the Facility Agent 5 Business Days’ written notice thereof;
provided
that, at no time shall the sum of the Total Allocable Commitment under this Agreement and the “Total
Allocable Commitment” (under and as defined in the Other Term Loan Facility) exceed the Total Commitment at such time.
“
Total Capitalization
” shall mean, at any date of determination, the Total Net Funded Debt
plus
the consolidated
stockholders’ equity of the NCLC Group at such date determined in accordance with GAAP and derived from the then latest unaudited consolidated financial statements of the NCLC Group delivered to the Facility Agent in the case of the first three
quarters of each fiscal year and the then latest audited consolidated financial statements of the NCLC Group delivered to the Facility Agent in the case of each fiscal year;
provided
it is understood that the effect of any impairment of
intangible assets shall be added back to stockholders’ equity.
“
Total Commitment
” shall mean, at any
time, an amount denominated in Euro equal to the lesser of (i) €126,075,000 and (ii) the sum of (x) 10% of the Aggregate Initial Construction Price and (y) 100% of the aggregate amount of the Hermes Premium payable in
respect of this Agreement and the Other Term Loan Facility, as such Total Commitment may be reduced pursuant to Sections 3.02, 3.03 and 4.02 of this Agreement and the Other Term Loan Facility.
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“
Total Net Funded Debt
” shall mean, as at any relevant date:
(i) Indebtedness for Borrowed Money of the NCLC Group on a consolidated basis; and
(ii) the amount of any Indebtedness for Borrowed Money of any person which is not a member of the NCLC Group but which is
guaranteed by a member of the NCLC Group as at such date;
less
an amount equal to any Cash Balance as at such date;
provided
that any Commitments and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group which remain undrawn shall not be counted as cash or indebtedness for the purposes of this Agreement.
“
Tranche A Borrowing Date
” shall mean a Borrowing Date in respect of Tranche A Loans.
“
Tranche A Initial Borrowing Date
” shall mean the date occurring on or after the Effective Date on which the initial
Borrowing of Tranche A Loans occurs.
“
Tranche A Intercreditor Agreement
” shall mean the intercreditor deed
executed by
inter alia
, (a) each Lender, each other Secured Creditor, the Collateral Agent, the Documentation Agent and the Hermes Agent, (b) each lender, each other secured creditor, the collateral agent, the documentation agent,
the Hermes agent and the borrower under the Breakaway One Facility, (c) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent and the borrower under the Other Term Loan Facility and
(d) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by the Borrower and the Guarantor substantially in the form of Exhibit M-1.
“
Tranche A Loan
” shall have the meaning provided in Section 2.01(b).
“
Tranche A Loan Maturity Date
” shall mean the third anniversary of the Vessel 1 Delivery Date.
“
Tranche B Borrowing Date
” shall mean a Borrowing Date in respect of Tranche B Loans.
“
Tranche B Initial Borrowing Date
” shall mean the date occurring on or after the Effective Date on which the initial
Borrowing of Tranche B Loans occurs.
“
Tranche B Intercreditor Agreement
” shall mean the intercreditor deed
executed by
inter
alia
, (a) each Lender, each other Secured Creditor, the Collateral Agent, the Documentation Agent and the Hermes Agent, (b) each lender, each other secured creditor, the collateral agent, the documentation
agent, the Hermes agent and the borrower under the Breakaway Two Facility, (c) each lender, each other secured creditor, the collateral agent, the documentation agent, the Hermes agent and the borrower under the Other Term Loan Facility and
(d) each additional Authorized Representative (as defined therein) from time to time party thereto, and acknowledged by the Borrower and the Guarantor substantially in the form of Exhibit M-2.
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“
Tranche B Loan
” shall have the meaning provided in Section 2.01(b).
“
Tranche B Loan Maturity Date
” shall mean the third anniversary of the Vessel 2 Delivery Date.
“
Transaction
” shall mean collectively (i) the execution, delivery and performance by each Credit Party of the
Credit Documents to which it is a party, the incurrence of Loans on each Borrowing Date and the use of proceeds thereof, (ii) the execution, delivery and performance by the relevant credit parties party to the Other Term Loan Credit Documents
to which they are a party, the incurrence of the loans thereunder and the use of proceeds thereof, (iii) the execution, delivery and performance by the relevant credit parties party to the Export Credit Documents to which they are a party, the
incurrence of the loans thereunder and the use of proceeds thereof and (iv) the payment of all fees and expenses in connection with the foregoing.
“
Transfer Certificate
” means a certificate substantially in the form set out in Exhibit E or any other form agreed between the Facility Agent and the Parent.
“
UCC
” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
“
United States
” and “
U.S.
” shall each mean the United States of America.
“
Vessel 1
” shall mean the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional
hull number S.678 to be constructed by the Yard pursuant to the Vessel 1 Construction Contract.
“
Vessel 1 Assignment
of Contracts
” shall have the meaning provided in Section 5.06(a).
“
Vessel 1 Assignment of KfW Refund
Guarantee
” shall have the meaning provided in Section 5.06(a).
“
Vessel 1 Construction
Contract
” shall mean the Shipbuilding Contract (in Relation to Vessel 1), dated as of 24 September, 2010, among Breakaway One, the Parent and the Yard, as such Shipbuilding Contract may be amended, modified or supplemented from time to
time in accordance with the terms thereof and hereof.
“
Vessel 1 Delivery Date
” shall mean the date of
delivery of Vessel 1 to Breakaway One, which is currently scheduled to occur in April 2013.
“
Vessel 2
” shall
mean the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S-692 to be constructed by the Yard pursuant to the Vessel 2 Construction Contract.
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“
Vessel 2 Assignment of Contracts
” shall have the meaning provided in
Section 5.06(b).
“
Vessel 2 Assignment of KfW Refund Guarantee
” shall have the meaning provided in
Section 5.06(b).
“
Vessel 2 Construction Contract
” shall mean the Shipbuilding Contract (in relation to
Vessel 2), dated as of September 24, 2010, among the Breakaway Two, the Parent and the Yard as such Shipbuilding Contract may be amended, modified or supplemented from time to time in accordance with the terms thereof and hereof.
“
Vessel 2 Delivery Date
” shall mean the date of delivery of Vessel 2 to Breakaway Two, which is currently scheduled to
occur in April 2014.
“
Vessel Mortgage
” shall have the meaning provided in the definition of “Collateral
and Guaranty Requirements”.
“
Vessel Value
” shall have the meaning set forth in Section 10.08.
“
Yard
” shall mean Meyer Werft GmbH, Papenburg/Germany, the shipbuilder constructing the New Vessels pursuant
to the Construction Contracts.
SECTION 2.
Amount and Terms of Credit Facility
.
2.01
The Commitments
. (a) Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make
on and after the first Initial Borrowing Date and prior to the Commitment Termination Date and at the times specified in Section 2.02 term loans to the Borrower (each a “
Loan
” and collectively the “
Loans
”),
which Loans (i) shall bear interest in accordance with Section 2.06, (ii) shall be denominated and repayable in Dollars, (iii) shall be disbursed on any Borrowing Date, (iv) disbursed on any Borrowing Date shall not exceed
on such Borrowing Date for all Lenders the Dollar Equivalent of the maximum available amount for such Borrowing Date as set forth in Section 2.02, (v) disbursed on any Borrowing Date shall not exceed for any Lender the Dollar Equivalent of
the Commitment of such Lender on such Borrowing Date, (vi) disbursed on any Borrowing Date shall not exceed the Dollar Availability on any such Borrowing Date and (vii) shall not in the aggregate exceed the Dollar Maximum Amount.
(b) Loans disbursed to indirectly fund installments and delivery payments to the Yard in respect of (x) Vessel 1
together with 50% of the Loans disbursed to fund payments of the Hermes Premium hereunder shall be herein referred to as “
Tranche A Loans
” and (y) Vessel 2 together with 50% of the Loans disbursed to fund payments of the Hermes
Premium hereunder shall be herein referred to as “
Tranche B Loans
”.
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2.02
Amount and Timing of Each Borrowing; Currency of Disbursements
. (a) The
Loans will be available on one or more dates (including each Initial Borrowing Date, each a “
Borrowing Date
”):
(i) to indirectly fund installments and delivery payments to the Yard under the Construction Contracts for the New Vessels on or after the dates such payments are due and owing;
provided
that on
any Borrowing Date, the Loans shall be available to the Borrower to indirectly fund installments and delivery payments to the Yard in respect of a New Vessel if and only if ECF Loans under the Export Credit Facility for such New Vessel have been, or
contemporaneously with the making of such Loans are, made available to the applicable ECF Borrower on or prior to such Borrowing Date to fund such installments and delivery payments (as the case may be), and
(ii) to fund payments of the applicable Hermes Premium on and after the dates on which such Hermes Premium is due and
owing (including to reimburse the Parent or the Borrower for amounts it paid out of cash on hand) (it being understood and agreed that the Lenders shall be authorized to disburse directly to Hermes the proceeds of Loans in an amount equal to the
Hermes Premium that is then due and owing, without any action on the part of the Borrower (including, without limitation, without delivery by the Borrower of a Notice of Borrowing to the Facility Agent in respect thereof), so long as the Facility
Agent provides the Borrower with notice thereof).
(b) Loans made on each Borrowing Date shall be disbursed by the Facility
Agent to the Borrower and/or its designee(s), as set forth in Section 2.04, in Dollars and, subject to the Dollar Availability on such Borrowing Date, shall be in an amount equal to the Dollar Equivalent of the amount of the Total Allocable
Commitment utilized to make such Loans on such Borrowing Date pursuant to this Section 2.02,
provided
that in the event that the Borrower has not (i) notified the Facility Agent in the Notice of Borrowing that it has entered into
Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes or to the Yard on such Borrowing Date and (ii) provided reasonably sufficient evidence to the Facility Agent of such Earmarked Foreign Exchange
Arrangements in the Notice of Borrowing, the Facility Agent on such Borrowing Date shall convert the Dollar amount of the Loans to be made by each Lender into Euro at the Spot Rate applicable for such Borrowing Date (it being understood that the
same Spot Rate shall be used for such conversion as is used to calculate the Dollar Equivalent referred to in this Section 2.02(b)), and shall inform each Lender thereof, and such Euro amount shall thereafter be disbursed to the Borrower and/or
its designee(s) as set forth in Section 2.04 (it being understood that each Lender shall remit its Loans to the Facility Agent in Dollars on such Borrowing Date).
(c) No Borrowing Date may occur (x) in the case of Tranche A Loans, after December 23, 2013 and (y) in the case of Tranche B Loans, after December 8, 2014.
2.03
Notice of Borrowing
. Subject to the second parenthetical in Section 2.02(a)(ii), whenever the Borrower desires to make a
Borrowing hereunder, it shall give the Facility Agent at its Notice Office at least three Business Days’ prior written notice of each Loan to be made hereunder,
provided
that any such notice shall be deemed to have been given on a
certain day only if given before 11:00 A.M. (Frankfurt time) (unless such 11:00 A.M. deadline is waived by the Facility Agent in the case of the first Initial Borrowing Date). Each such written notice (each a “
Notice of
Borrowing
”), except as otherwise expressly provided in Section 2.08, shall be irrevocable and shall be given by the Borrower substantially in the form of Exhibit A, appropriately completed to specify (i) the portion of the Total
Commitment to be utilized on such
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Borrowing Date, (ii) whether the Loans to be made on such Borrowing Date shall consist of Tranche A Loans or Tranche B Loans, (iii) if the Borrower and/or the Parent and/or an ECF
Borrower has entered into Earmarked Foreign Exchange Arrangements with respect to the installment payments due and owing under the relevant Construction Contract to be funded by the Loans to be incurred on such Borrowing Date, the Dollar Equivalent
of the portion of the Total Commitment to be borrowed on such Borrowing Date and evidence of such Earmarked Foreign Exchange Arrangements, (iv) the date of such Borrowing (which shall be a Business Day), (v) the initial Interest Period to
be applicable thereto (vi) to which account(s) the proceeds of such Loans are to be deposited (it being understood that pursuant to Section 2.04 the Borrower may designate one or more accounts of the Yard, Hermes and/or the provider of the
foreign exchange arrangements referenced in the definition of Dollar Equivalent), (vii) that all representations and warranties made by each Credit Party, in or pursuant to the Credit Documents are true and correct in all material respects
(unless stated to relate to a specific earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and no Event of Default is or will be continuing after giving effect to
such Borrowing and (viii) the Dollar Availability on such Borrowing Date together with calculations evidencing the determination of such Dollar Availability (in form and substance reasonably satisfactory to the Facility Agent). The Facility
Agent shall promptly give each Lender which is required to make Loans, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
2.04
Disbursement of Funds
. No later than 12:00 Noon (Frankfurt time) on the date specified
in each Notice of Borrowing, each Lender will make available its
pro
rata
portion of each Borrowing requested in the Notice of Borrowing to be made on such date. All such amounts shall be made available in the currency required by
Section 2.02(b) in immediately available funds at the Payment Office of the Facility Agent, and the Facility Agent will make available to (I) in the case of Loans disbursed in Dollars, the Borrower (and/or its designee(s), to the extent
possible and to the extent such designee is a provider of Earmarked Foreign Exchange Arrangements referenced in the definition of Dollar Equivalent) and (II) in the case of Loans disbursed in Euro, designee(s) of the Borrower (to the extent any such
designee is the Yard or, in the case of the Hermes Premium, Hermes), in each case prior to 3:00 P.M. (Frankfurt Time) on such day, to the extent of funds actually received by the Facility Agent prior to 12:00 Noon (Frankfurt Time) on such day
in each case at the Payment Office in the account(s) specified in the applicable Notice of Borrowing, the aggregate of the amounts so made available by the Lenders. Unless the Facility Agent shall have been notified by any Lender prior to the date
of Borrowing that such Lender does not intend to make available to the Facility Agent such Lender’s portion of any Borrowing to be made on such date, the Facility Agent may assume that such Lender has made such amount available to the Facility
Agent on such date of Borrowing and the Facility Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Facility Agent by such Lender, the
Facility Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Facility Agent’s demand therefor, the Facility Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Facility Agent. The Facility Agent shall also be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest
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on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Facility Agent to the Borrower until the date such corresponding amount is
recovered by the Facility Agent, at a rate per annum equal to (i) if recovered from such Lender, at the overnight Eurodollar Rate and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 2.06. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of
any failure by such Lender to make Loans hereunder.
2.05
Pro Rata Borrowings
. All Borrowings of Loans under this
Agreement shall be incurred from the Lenders
pro
rata
on the basis of their Commitments. It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each
Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder. The obligations of the Lenders under this Agreement are several and not joint and no Lender
shall be responsible for the failure of any other Lender to satisfy its obligations hereunder.
2.06
Interest
.
(a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Loan from the date the proceeds thereof are made available to the Borrower until the maturity (whether by acceleration or otherwise) of such Loan at a
rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin plus the Eurodollar Rate for such Interest Period plus any Mandatory Costs.
(b) If the Borrower fails to pay any amount payable by it under a Credit Document on its due date, interest shall accrue on the
overdue amount (in the case of overdue interest to the extent permitted by law) from the due date up to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (c) below, 2%
plus
the rate
which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing
under this Section 2.06(b) shall be immediately payable by the Borrower on demand by the Facility Agent.
(c)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that first Interest Period shall be 2%
plus
the rate which would have applied if the overdue amount had not become due.
Default interest (if unpaid) arising on an
overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
(d) Accrued and unpaid interest shall be payable in respect of each Loan, (i) on the last day of each Interest Period applicable
thereto and every three months in the case of Interest Periods in excess of three months, (ii) on any repayment or prepayment date (on the amount repaid or prepaid), (iii) at maturity (whether by acceleration or otherwise) and
(iv) after such maturity, on demand.
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(e) Upon each Interest Determination Date, the Facility Agent shall determine the Eurodollar
Rate for each Interest Period applicable to the Loans to be made pursuant to the applicable Borrowing and shall promptly notify the Borrower and the respective Lenders thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
2.07
Interest Periods
. At the time the Borrower gives any Notice of
Borrowing in respect of the making of Loans by the Lenders (in the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of an Interest Period applicable to such Loans (in the case of any
subsequent Interest Period), it shall have the right to elect, by giving the Facility Agent notice thereof, the interest period (each an “
Interest Period
”) applicable to such Loans, which Interest Period shall, at the option of the
Borrower, be a three or six month period;
provided
that:
(a) all Loans comprising a Borrowing shall at
all times have the same Interest Period;
(b) the initial Interest Period for any Loan shall commence on the
date of Borrowing of such Loan and each Interest Period occurring thereafter in respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires;
(c) if any Interest Period relating to a Loan begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;
(d) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the first succeeding Business Day;
provided
,
however
, that if any
Interest Period for a Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
(e) no Interest Period longer than three months may be selected at any time when an Event of Default (or, if
the Facility Agent or the Required Lenders have determined that such an election at such time would be disadvantageous to the Lenders, a Default) has occurred and is continuing;
(f) no Interest Period in respect of any Borrowing of any Loans shall be selected which extends beyond the Tranche A Loan
Maturity Date (in the case of Tranche A Loans) or the Tranche B Loan Maturity Date (in the case of Tranche B Loans); and
(g) at no time shall there be more than ten Borrowings of Loans subject to different Interest Periods.
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If upon the expiration of any Interest Period applicable to a Borrowing, the Borrower has
failed to elect a new Interest Period to be applicable to such Loans as provided above, the Borrower shall be deemed to have elected a three month Interest Period to be applicable to such Loans effective as of the expiration date of such current
Interest Period.
2.08
Increased Costs, Illegality, Market Disruption, etc
. (a) In the event that any Lender shall
have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) at any time, that such Lender shall incur increased costs (including, without limitation, pursuant to Basel II to the extent Basel II is applicable), Mandatory Costs (as set forth on Schedule 1.01(c))
or reductions in the amounts received or receivable hereunder with respect to any Loan because of, without duplication, any change since the Effective Date in any applicable law or governmental rule, governmental regulation, governmental order,
governmental guideline or governmental request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, governmental regulation, governmental
order, governmental guideline or governmental request, such as, for example, but not limited to: (A) a change in the basis of taxation of payment to any Lender of the principal of or interest on such Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Lender, or any franchise tax based on net income or net profits, of such Lender pursuant to the laws of the jurisdiction in which such
Lender is organized or in which such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or
(B) a change in official reserve requirements; or
(ii) at any time, that the making or continuance of any
Loan has been made unlawful by any law or governmental rule, governmental regulation or governmental order;
then
, and in any such
event, such Lender shall promptly give notice (by telephone confirmed in writing) to the Borrower and to the Facility Agent of such determination (which notice the Facility Agent shall promptly transmit to each of the Lenders). Thereafter
(x) in the case of clause (i) above, the Borrower agrees (to the extent applicable), to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation
for the increased costs or reductions to such Lender or such other corporation and (y) in the case of clause (ii) above, the Borrower shall take one of the actions specified in Section 2.08(b) as promptly as possible and, in any
event, within the time period required by law. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such Lender’s
determination of compensation owing under this Section 2.08(a) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to
this Section 2.08(a), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for the calculation of such additional amounts;
provided
that, subject to the provisions of
Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
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(b) At any time that any Loan is affected by the circumstances described in
Section 2.08(a)(i) or (ii), the Borrower may (and in the case of a Loan affected by the circumstances described in Section 2.08(a)(ii) shall) either (x) if the affected Loan is then being made initially, cancel the respective
Borrowing by giving the Facility Agent notice in writing on the same date or the next Business Day that the Borrower was notified by the affected Lender or the Facility Agent pursuant to Section 2.08(a)(i) or (ii) or (y) if the
affected Loan is then outstanding, upon at least three Business Days’ written notice to the Facility Agent, in the case of any Loan, repay all outstanding Borrowings (within the time period required by the applicable law or governmental rule,
governmental regulation or governmental order) which include such affected Loans in full in accordance with the applicable requirements of Section 4.02;
provided
that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 2.08(b).
(c) If any Lender determines that after the Effective
Date (i) the introduction of or effectiveness of or any change in any applicable law or governmental rule, governmental regulation, governmental order, governmental guideline, governmental directive or governmental request (whether or not
having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency will have the effect of increasing the amount of capital required or
expected to be maintained by such Lender, or any corporation controlling such Lender, based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, (ii) compliance with any law or regulation or any request
from or requirement of any central bank or other fiscal, monetary or other authority made after the Effective Date (including any which relates to capital adequacy or liquidity controls or which affects the manner in which a Lender allocates capital
resources to obligations under this Agreement, any Interest Rate Protection Agreement and/or any Other Hedging Agreement) or (iii) to the extent that such change is not discretionary and is pursuant to law, a governmental mandate or request, or
a central bank or other fiscal or monetary authority mandate or request, any change in the risk weight allocated by such Lender to the Borrower after the Effective Date, then the Borrower agrees (to the extent applicable) to pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or
such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable,
provided
that such
Lender’s determination of compensation owing under this Section 2.08(c) shall, absent manifest error be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 2.08(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts;
provided
that, subject to the provisions of
Section 2.10(b), the failure to give such notice shall not relieve the Borrower from its Credit Document Obligations hereunder.
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(d) If a Market Disruption Event occurs in relation to any Lender’s share of a Loan for
any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
(i) the Applicable Margin;
(ii) the rate determined by such Lender and notified to the Facility Agent by 5:00 P.M. (Frankfurt time) on the Interest Determination Date for such Interest Period to be that which expresses as a
percentage rate per annum the cost to each such Lender of funding its participation in that Loan for a period equivalent to such Interest Period from whatever source it may reasonably select;
provided
that the rate provided by a Lender
pursuant to this clause (ii) shall not be disclosed to any other Lender and shall be held as confidential by the Facility Agent and the Borrower; and
(iii) the Mandatory Costs, if any, applicable to such Lender of funding its participation in that Loan.
(e) If a Market Disruption Event occurs and the Facility Agent or the Borrower so require, the Facility 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. Any alternative basis agreed pursuant to the immediately preceding sentence shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties. If no
agreement is reached pursuant to this clause (e), the rate provided for in clause (d) above shall apply for the entire applicable Interest Period.
(f) If any Reference Bank ceases to be a Lender under this Agreement, (x) it shall cease to be a Reference Bank and (y) the Facility Agent shall, with the approval (which shall not be
unreasonably withheld) of the Borrower, nominate as soon as reasonably practicable another Lender to be a Reference Bank in place of such Reference Bank.
2.09
Indemnification; Breakage Costs
. The Borrower agrees to indemnify each Lender, within two Business Days of demand (in writing which request shall set forth in reasonable detail the basis for
requesting and the calculation of such amount and which in the absence of manifest error shall be conclusive evidence as to the amount due), for all losses, expenses and liabilities (including, without limitation, any such loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Loans but excluding any loss of anticipated profits) which such Lender may sustain in respect of Loans made to the Borrower:
(i) if for any reason (other than a default by such Lender or the Facility Agent) a Borrowing of Loans does not occur on a date specified therefor in a Notice of Borrowing (whether or not withdrawn by the Borrower or deemed withdrawn pursuant
to Section 2.08(a)); (ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 2.08(a), Section 4.01 or Section 4.02 or as a result of an acceleration of the Loans pursuant to
Section 11) of any of its Loans, or assignment and/or transfer of its Loans pursuant to Section 2.11, occurs on a date which is not the last day of an Interest Period with respect thereto; or (iii) if any prepayment of any of its
Loans is not made on any date specified in a notice of prepayment given by the Borrower.
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2.10
Change of Lending Office; Limitation on Additional Amounts
. (a) Each Lender
agrees that on the occurrence of any event giving rise to the operation of Section 2.08(a), Section 2.08(b), or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable good faith efforts
(subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event or otherwise take steps to mitigate the effect of such event,
provided
that such designation shall be made
and/or such steps shall be taken at the Borrower’s cost and on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage in excess of
de
minimus
amounts, with the object of avoiding
the consequence of the event giving rise to the operation of such Section. Nothing in this Section 2.10 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender provided in Section 2.08 and
Section 4.04.
(b) Notwithstanding anything to the contrary contained in Sections 2.08, 2.09 or 4.04 of this Agreement,
unless a Lender gives notice to the Borrower that it is obligated to pay an amount under any such Section within 180 days of the later of (x) the date the Lender incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or (y) the date such Lender has knowledge of its incurrence of the respective increased costs, Taxes, loss, expense or liability, reductions in amounts received or
receivable or reduction in return on capital, then such Lender shall only be entitled to be indemnified for such amount by the Borrower pursuant to said Section 2.08, 2.09, or 4.04, as the case may be, to the extent the costs, Taxes, loss,
expense or liability, reduction in amounts received or receivable or reduction in return on capital are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to the Borrower that it is obligated to pay
the respective amounts pursuant to said Section 2.08, 2.09 or 4.04, as the case may be. This Section 2.10(b) shall have no applicability to any Section of this Agreement other than said Sections 2.08, 2.09 and 4.04.
2.11
Replacement of Lenders
. (x) If any Lender becomes a Defaulting Lender or otherwise defaults in its obligations to make
Loans, (y) upon the occurrence of any event giving rise to the operation of Section 2.08(a) or Section 4.04 with respect to any Lender which results in such Lender charging to the Borrower material increased costs in excess of the
average costs being charged by the other Lenders, or (z) as provided in Section 14.11(b) in the case of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders, the Borrower shall (for its own cost) have the right, if no Default or Event of Default will exist immediately after giving effect to the respective replacement, to replace such Lender (the
“
Replaced Lender
”) with one or more other Eligible Transferee or Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “
Replacement Lender
”)
reasonably acceptable to the Facility Agent (it being understood that all then-existing Lenders are reasonably acceptable);
provided
that:
(a) at the time of any replacement pursuant to this Section 2.11, the Replacement Lender shall enter into one or more Transfer Certificates pursuant to Section 13.01(a) (and with all fees
payable pursuant to said Section 13.02 to be paid by the Replacement Lender) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to
the Replaced Lender in respect thereof an amount equal to the sum
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(without duplication) of (x) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender, and (y) an amount equal to all accrued, but
unpaid, Commitment Commission owing to the Replaced Lender pursuant to Section 3.01;
(b) all obligations
of the Borrower due and owing to the Replaced Lender at such time (other than those specifically described in clause (a) above) in respect of which the assignment purchase price has been, or is concurrently being, paid shall be paid in full to
such Replaced Lender concurrently with such replacement; and
(c) if the Borrower elects to replace any Lender
pursuant to clause (x), (y) or (z) of this Section 2.11, the Borrower shall also replace each other Lender that qualifies for replacement under such clause (x), (y) or (z).
Upon the execution of the respective Transfer Certificate and the payment of amounts referred to in clauses (a) and (b) above,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09,
4.04, 14.01 and 14.05), which shall survive as to such Replaced Lender.
2.12
Disruption to Payment Systems, Etc.
If
either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Parent or the Borrower that a Disruption Event has occurred:
(i) the Facility Agent may, and shall if requested to do so by the Borrower or the Parent, consult with the Borrower with
a view to agreeing with the Borrower such changes to the operation or administration of this Agreement as the Facility Agent may deem necessary in the circumstances;
(ii) the Facility Agent shall not be obliged to consult with the Borrower or the Parent in relation to any changes
mentioned in clause (i) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
(iii) the Facility Agent may consult with the other Agents, the Joint Lead Arrangers and the Lenders in relation to any
changes mentioned in clause (i) above but shall not be obliged to do so if, in its opinion, it is not practicable or necessary to do so in the circumstances;
(iv) any such changes agreed upon by the Facility Agent and the Borrower or the Parent pursuant to clause (i) above
shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the parties to this Agreement as an amendment to (or, as the case may be, waiver of) the terms of the Credit Documents, notwithstanding the
provisions of Section 14.11, until such time as the Facility Agent is satisfied that the Disruption Event has ceased to apply;
(v) the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence or any other category of liability whatsoever but not including any
claim based on the gross negligence, fraud or willful misconduct of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Section 2.12; and
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(vi) the Facility Agent shall notify the other Agents, the Joint Lead
Arrangers and the Lenders of all changes agreed pursuant to clause (iv) above as soon as practicable.
SECTION 3.
Commitment Commission; Fees; Reductions of Commitment
.
3.01
Commitment Commission
. (a) The Borrower agrees
to pay the Facility Agent for distribution to each Non-Defaulting Lender a commitment commission (the “
Commitment Commission
”) for the period from the Effective Date to and including the Commitment Termination Date (or such earlier
date as the Total Commitment shall have been terminated) computed at a rate for each day equal to 0.375 multiplied by the Applicable Margin multiplied by the Commitment for such day of such Non-Defaulting Lender divided by 360. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Payment Date and on the Borrowing Date corresponding to the second Delivery Date to occur (or such earlier date upon which the Total Commitment is terminated).
(b) The Borrower shall pay to each Agent, for such Agent’s own account or for the account of the Lenders, such other fees as have
been agreed to in writing by the Borrower and such Agent.
3.02
Voluntary Reduction or Termination of Commitments
. Upon
at least three Business Days’ prior notice to the Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, at any time or from time to time, without
premium or penalty, to reduce or terminate the Total Commitment, in whole or in part, in integral multiples of €5,000,000 in the case of partial reductions thereto,
provided
that (x) any partial reduction to the Total Commitment
pursuant to this Section 3.02 shall only be effective if there is an equal reduction of the “Total Commitment” under and as defined in the Other Term Loan Facility and (y) each such reduction shall apply proportionately to
permanently reduce the Commitment of each Lender.
3.03
Mandatory Reduction of Commitments
. (a) In addition to any
other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment (and the Commitment of each Lender) shall terminate in its entirety on the Commitment Termination Date.
(b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement,
the Total Commitment (and the Commitments of each Lender) shall be reduced:
(i)(immediately after the relevant
Loans are made) on each Borrowing Date by the amount of Total Commitment utilized to make the Loans made on such Borrowing Date; and
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(ii) on each borrowing date under the Other Term Loan Facility (immediately
after the relevant loans are made on such borrowing date under the Other Term Loan Facility) by the amount of Total Commitment utilized to make the loans under the Other Term Loan Facility on such borrowing date.
(c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement,
the Total Commitment shall be terminated at the times required by Section 4.02.
(d) Each reduction to the Total
Commitment pursuant to this Section 3.03 and Section 4.02 shall be applied proportionately to reduce the Commitment of each Lender.
(e) In addition to any other mandatory commitment reductions pursuant to this Section 3.03 or any other Section of this Agreement, the Total Commitment shall be reduced pursuant to Section 3.03
and 3.02 of the Other Term Loan Facility.
SECTION 4.
Prepayments; Repayments; Taxes
.
4.01
Voluntary Prepayments
. The Borrower shall have the right to prepay the Loans, without premium or penalty except as provided
by law, in whole or in part at any time and from time to time on the following terms and conditions:
(a) the
Borrower shall give the Facility Agent prior to 12:00 Noon (Frankfurt time) at its Notice Office at least 30 Business Days’ prior written notice of its intent to prepay such Loans, the amount of such prepayment and the specific Borrowing or
Borrowings pursuant to which made, which notice the Facility Agent shall promptly transmit to each of the Lenders;
(b) each prepayment shall be in an aggregate principal amount of at least $1,000,000 or such lesser amount of a Borrowing which is outstanding,
provided
that no partial prepayment of Loans made
pursuant to any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than $1,000,000;
(c) at the time of any prepayment of Loans pursuant to this Section 4.01 on any date other than the last day of the Interest Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 2.09;
(d) in the event of certain refusals by a Lender as provided in
Section 14.11(b) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower may, upon five Business Days’ written notice to the
Facility Agent at its Notice Office (which notice the Facility Agent shall promptly transmit to each of the Lenders), prepay all Loans, together with accrued and unpaid interest, Commitment Commission, and other amounts owing to such Lender (or
owing to such Lender with respect to each Loan which gave rise to the need to obtain such Lender’s individual consent) in accordance with said Section 14.11(b) so long as (A) the Commitment of such Lender (if any) is terminated
concurrently with such prepayment (at which time Schedule 1.01(a) shall be deemed modified to reflect the changed Commitments) and (B) the consents required by Section 14.11(b) in connection with the prepayment pursuant to this clause
(d) have been obtained; and
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(e) each prepayment in respect of any Loans made pursuant to a Borrowing
shall be applied (x) in inverse order of maturity and (y) except as expressly provided in the preceding clause (d),
pro
rata
among the Loans comprising such Borrowing,
provided
that in connection with any prepayment of
Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Loan of a Defaulting Lender until all other Loans of Non-Defaulting Lenders have been repaid in full.
4.02
Mandatory Repayments and Commitment Reductions
. (a) In addition to any other mandatory repayments pursuant to this
Section 4.02 or any other Section of this Agreement, the outstanding Loans shall be repaid (without further action of the Borrower being required) in 6 equal semi-annual installments commencing on the first Business Day that is on or after the
sixth month anniversary of (x) in the case of Tranche A Loans, the Borrowing Date in relation to the Vessel 1 Delivery Date and ending on the Tranche A Loan Maturity Date and (y) in the case of Tranche B Loans, the Borrowing Date in
relation to the Vessel 2 Delivery Date and ending on the Tranche B Loan Maturity Date (each such repayment, a “
Scheduled Repayment
”).
(b) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of this Agreement, but without duplication, on (i) the Business Day
following the date of a Collateral Disposition (other than a Collateral Disposition constituting an Event of Loss) and (ii) the earlier of (A) the date which is 150 days following any Collateral Disposition constituting an Event of Loss
involving the Collateral Vessel (or, in the case of an Event of Loss which is a constructive or compromised or arranged total loss of the Collateral Vessel, if earlier, 180 days after the date of the event giving rise to such damage) and
(B) the date of receipt by the Borrower, any of its Subsidiaries or the Facility Agent of the insurance proceeds relating to such Event of Loss, the Borrower shall repay the outstanding Loans in full and the Total Allocable Commitment shall be
automatically terminated and no further disbursements of Loans hereunder shall be permitted (without further action of the Borrower being required).
(c) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02 or any other Section of this Agreement, but without duplication, (x) if (i) the
Vessel 1 Construction Contract is terminated prior to the Vessel 1 Delivery Date, (ii) Vessel 1 has not been delivered to Breakaway One by the Yard pursuant to the Vessel 1 Construction Contract by December 23, 2013 (iii) the
Breakaway One Facility shall have been terminated or (iv) any of the events specified in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the Vessel 1 Delivery Date, within five Business Days of the
occurrence of such event the Borrower shall repay the outstanding Tranche A Loans in full and no further Loans shall be made in respect of installment and delivery payments in respect of Vessel 1, and (y) if (i) the Vessel 2 Construction
Contract is terminated prior to the Vessel 2 Delivery Date, (ii) Vessel 2 has not been delivered to Breakaway Two by the Yard pursuant to the Vessel 2 Construction Contract by December 8, 2014 (iii) the Breakaway Two Facility shall
have been be terminated or (iv) any of the events specified in Sections 11.05, 11.10 or 11.11 shall occur in respect of the Yard at any time prior to the Vessel 2 Delivery Date, within five Business Days of the occurrence of such event the
Borrower shall repay the outstanding Tranche
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B Loans in full and no further Loans shall be made in respect of installment and delivery payments in respect of Vessel 2. Notwithstanding anything to the contrary in this Section 4.02(c),
if the Borrower is not permitted to make such prepayment pursuant to the Senior Loan Agreements or the Jewel Intercreditor Agreement, then the Borrower or the Parent shall post cash collateral or other collateral reasonably acceptable to the
Required Lenders in an amount equal to the then-outstanding Tranche A Loans or Tranche B Loans (as the case may be).
(d) With
respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the specific Borrowing or Borrowings pursuant to which such Loans were made,
provided
that (i) all Loans with Interest Periods ending on
such date of required repayment shall be paid in full prior to the payment of any other Loans and (ii) each repayment of any Loans comprising a Borrowing shall be applied
pro
rata
among such Loans. In the absence of a designation
by the Borrower as described in the preceding sentence, the Facility Agent shall, subject to the preceding provisions of this clause (d), make such designation in its sole reasonable discretion with a view, but no obligation, to minimize breakage
costs owing pursuant to Section 2.09.
(e) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, (i) all outstanding Tranche A Loans shall be repaid in full on the Tranche A Loan Maturity Date and (ii) all outstanding Tranche B Loans shall be repaid in full on the Tranche B Loan Maturity Date.
4.03
Method and Place of Payment
. Except as otherwise specifically provided herein, all payments under this Agreement shall be
made to the Facility Agent for the account of the Lender or Lenders entitled thereto not later than 10:00 A.M. (New York time) on the date when due and shall be made in Dollars in immediately available funds at the Payment Office of the Facility
Agent. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day (unless the next succeeding Business Day shall fall in the
next calendar month, in which case the due date thereof shall be the previous Business Day) and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.
4.04
Net Payments; Taxes
. (a) All payments made by any Credit Party hereunder will be made without setoff, counterclaim or
other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income, net profits or any franchise tax based on net income or net profits,
and any branch profits tax of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any subdivision thereof or therein
or due to failure to provide documents under Section 4.04(b), all such taxes “
Excluded Taxes
”) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges to the extent imposed on taxes other than Excluded Taxes (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “
Taxes
” and
“
Taxation
” shall be applied accordingly). The Borrower will furnish to the Facility Agent within
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45 days after the date of payment of any Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender agrees (consistent with legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower any
information as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes;
provided
,
however
, that nothing in this Section 4.04(b) shall require a
Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations). The Borrower shall not be required to indemnify any Lender for Taxes attributed to such Lender’s failure to provide the
required documents under this Section 4.04(b).
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion exercised in good faith that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or
with respect to the taxable year in which the additional amount is paid (a “
Tax Benefit
”), such Lender shall pay to the Borrower an amount that such Lender shall, in its sole discretion exercised in good faith, determine is equal to
the net benefit, after tax, which was obtained by such Lender in such year as a consequence of such Tax Benefit;
provided
,
however
, that (i) any Lender may determine, in its sole discretion exercised in good faith consistent with
the policies of such Lender, whether to seek a Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that
otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender
pursuant to this Section 4.04 without any exclusions or defenses and (iii) nothing in this Section 4.04(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax
returns).
4.05
Application of Proceeds
. (a) Subject to the provisions of the applicable Intercreditor Agreements
(to the extent such Intercreditor Agreements are operative), all proceeds collected by the Collateral Agent upon any sale or other disposition of such Collateral of each Credit Party, together with all other proceeds received by the Collateral Agent
under and in accordance with this Agreement and the other Credit Documents (except to the extent released in accordance with the applicable provisions of this Agreement or any other Credit Document), shall be applied by the Facility Agent to the
payment of the Secured Obligations as follows:
(i)
first
, to the payment of all amounts owing to the
Collateral Agent or any other Agent of the type described in clauses (iii) and (iv) of the definition of “Secured Obligations”;
(ii)
second
, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Credit Document Obligations shall be paid to the Lender
Creditors as provided in Section 4.05(d) hereof, with each Lender Creditor receiving an amount equal to such outstanding Credit Document
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Obligations or, if the proceeds are insufficient to pay in full all such Credit Document Obligations, its Pro Rata Share of the amount remaining to be distributed,
provided
that to the
extent such proceeds are (a) in respect of ECF Collateral related to Vessel 1, such proceeds will be applied first to the outstanding Credit Document Obligations in respect of Tranche A Loans and second to the outstanding Credit Document
Obligations in respect of Tranche B Loans, and (b) in respect of ECF Collateral related to Vessel 2, such proceeds will be applied first to the outstanding Credit Document Obligations in respect of Tranche B Loans and second to the outstanding
Credit Document Obligations in respect of Tranche A Loans;
(iii)
third
, to the extent proceeds remain
after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Other Obligations shall be paid to the Other Creditors as provided in Section 4.05(d) hereof, with each Other Creditor receiving an
amount equal to such outstanding Other Obligations or, if the proceeds are insufficient to pay in full all such Other Obligations, its Pro Rata Share of the amount remaining to be distributed,
provided
that to the extent such monies are
(a) in respect of ECF Collateral related to Vessel 1, such proceeds will be applied first to the outstanding Other Obligations in respect of Tranche A Loans and second to the outstanding Other Obligations in respect of Tranche B Loans, and
(b) in respect of ECF Collateral related to Vessel 2, such proceeds will be applied first to the outstanding Other Obligations in respect of Tranche B Loans and second to the outstanding Other Obligations in respect of Tranche A Loans; and
(iv)
fourth
, to the extent proceeds remain after the application pursuant to the preceding clauses
(i) through (iii), inclusive, and following the termination of this Agreement, the Credit Documents, the Interest Rate Protection Agreements and the Other Hedging Agreements in accordance with their terms, to the relevant Credit Party or to
whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, “
Pro Rata
Share
” shall mean, when calculating a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured
Creditor’s Credit Document Obligations or Other Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Credit Document Obligations or Other Obligations, as the case may be.
(c) If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the unpaid Credit Document Obligations or Other Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Credit Document Obligations or
Other Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be, of
such Secured Creditor and the denominator of which is the unpaid Credit Document Obligations or Other Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
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(d) All payments required to be made hereunder shall be made (x) if to the Lender
Creditors, to the Facility Agent under this Agreement for the account of the Lender Creditors, and (y) if to the Other Creditors, to the trustee, paying agent or other similar representative (each, a “
Representative
”) for the
Other Creditors or, in the absence of such a Representative, directly to the Other Creditors.
(e) For purposes of applying
payments received in accordance with this Section 4.05, the Collateral Agent shall be entitled to rely upon (i) the Facility Agent under this Agreement and (ii) the Representative for the Other Creditors or, in the absence of such a
Representative, upon the Other Creditors for a determination (which the Facility Agent, each Representative for any Other Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding
Credit Document Obligations and Other Obligations owed to the Lender Creditors or the Other Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from an Other Creditor) to the contrary, the Collateral
Agent, shall be entitled to assume that no Interest Rate Protection Agreements or Other Hedging Agreements are in existence.
(f) It is understood and agreed that each Credit Party shall remain jointly and severally liable to the extent of any deficiency between
the amount of the proceeds of the Collateral pledged by it under and pursuant to the Security Documents and the aggregate amount of the Secured Obligations of such Credit Party.
SECTION 5.
Conditions Precedent to the Initial Borrowing Dates
. The obligation of each Lender to make Loans on each Initial
Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 5.02, 5.04, 5.05, 5.06, 5.07, 5.08, 5.10 and 5.12) waiver of the following conditions:
5.01
Effective Date
. On or prior to the first Initial Borrowing Date, the Effective Date shall have occurred.
5.02
Intercreditor Agreement
. (a) On or prior to the first Initial Borrowing Date, the Jewel Intercreditor Agreement shall
have been executed by the parties thereto and shall be in full force and effect;
(b) On or prior to the Tranche A Initial
Borrowing Date, the Tranche A Intercreditor Agreement shall have been executed by the parties thereto and shall be in full force and effect; and
(c) On or prior to the Tranche B Initial Borrowing Date, the Tranche B Intercreditor Agreement shall have been executed by the parties thereto and shall be in full force and effect; and
5.03
Corporate Documents; Proceedings; etc.
On the first Initial Borrowing Date, the Facility Agent shall have received a
certificate, dated the Initial Borrowing Date, signed by the secretary or any assistant secretary of each Credit Party (or, to the extent such Credit Party does not have a secretary or assistant secretary, the analogous Person within such Credit
Party), and attested to by an authorized officer, member or general partner of such Credit Party, as the case may be, in substantially the form of Exhibit D, with appropriate insertions, together with copies of the certificate of incorporation and
by-laws (or equivalent organizational documents) of such Credit Party and the resolutions of such Credit Party referred to in such certificate.
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5.04
Know Your Customer
. On the first Initial Borrowing Date, the Facility Agent, the
Hermes Agent and the Lenders shall have been provided with all information requested in order to carry out and be reasonably satisfied with all necessary “know your customer” information required pursuant to the PATRIOT ACT and such other
documentation and evidence necessary in order for the Lenders to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover in connection with each of
the Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
5.05
Construction Contract and Other Material Agreements
. On or prior to the first Initial Borrowing Date, the Facility Agent shall have received a true, correct and complete copy of each Construction Contract, which shall be in full force and
effect, and all other material contracts in connection with the construction, supervision and acquisition of each New Vessel that the Facility Agent may reasonably request and all such documents shall be reasonably satisfactory in form and substance
to the Facility Agent (it being understood that the executed copy of each Construction Contract delivered to the Joint Lead Arrangers prior to the Effective Date and attached as an exhibit to the Commitment Letter is satisfactory).
5.06
Assignment of Contracts
. (a) On the Tranche A Initial Borrowing Date, Breakaway One shall have duly authorized, executed
and delivered a valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway One Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment in
favor of the Collateral Agent of all of Breakaway One’s present and future interests in and benefits under (x) the Vessel 1 Construction Contract, (y) the Refund Guarantees in respect of Vessel 1 and (z) any and all Construction
Risk Insurances in respect of Vessel 1 (it being understood that the Parent and/or Breakaway One will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurances accept and endorse on such insurance policy a loss
payable clause substantially in the form set forth in Annex 1 to Part 3 of the Vessel 1 Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantees in respect of Vessel 1 and none of the
Construction Risk Insurances will have been issued on the Tranche A Initial Borrowing Date), which assignment shall be substantially in the form of Exhibit I-1 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and Breakaway One
and customary for transactions of this type (as modified, supplemented or amended from time to time, the “
Vessel 1 Assignment of Contracts
”), along with (to the extent incorporated into or required by such Exhibit or otherwise
agreed by Breakaway One and the Facility Agent) appropriate notices and consents relating thereto, including, without limitation, those acknowledgments, notices and consents listed on Schedule 5.06;
provided
that, if the Refund Guarantee
issued to Breakaway One on the Initial Borrowing Date (under and as defined in the Breakaway One Facility) shall have been issued by KfW IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and
delivered, valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway One Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment of Refund
Guarantee in the form
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of Exhibit O-1 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and customary for transactions of this type, along with appropriate notices and consents
relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent) (as modified, supplemented or amended from time to time, the “
Vessel 1 Assignment of KfW
Refund Guarantees
”); and
(b) On the Tranche B Initial Borrowing Date, Breakaway Two shall have duly authorized,
executed and delivered a valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway Two Facility and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal
assignment in favor of the Collateral Agent of all of Breakaway Two’s present and future interests in and benefits under (x) the Vessel 2 Construction Contract, (y) the Refund Guarantees in respect of Vessel 2 and (z) any and all
Construction Risk Insurances in respect of Vessel 2 (it being understood that the Parent and/or Breakaway Two will use commercially reasonable efforts to have the underwriters of the Construction Risk Insurances accept and endorse on such insurance
policy a loss payable clause substantially in the form set forth in Annex 1 to Part 3 of the Vessel 2 Assignment of Contracts (as defined below), and it being further understood that certain of the Refund Guarantees in respect of Vessel 2 and none
of the Construction Risk Insurances will have been issued on the Tranche B Initial Borrowing Date), which assignment shall be substantially in the form of Exhibit I-2 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and
Breakaway Two and customary for transactions of this type (as modified, supplemented or amended from time to time, the “
Vessel 2 Assignment of Contracts
” and together with the “
Vessel 1 Assignment of Contracts
”, the
“
Assignments of Contracts
”), along with (to the extent incorporated into or required by such Exhibit or otherwise agreed by Breakaway Two and the Facility Agent) appropriate notices and consents relating thereto, including, without
limitation, those acknowledgments, notices and consents listed on Schedule 5.06;
provided
that, if the Refund Guarantee issued to Breakaway Two on the Initial Borrowing Date (under and as defined in the Breakaway Two Facility) shall have been
issued by KfW IPEX-Bank GmbH, then such Refund Guarantee shall be assigned pursuant to a duly authorized, executed and delivered, valid and effective second-priority (junior only to the Liens of the secured creditors under the Breakaway Two Facility
and pari passu with the Liens of the secured creditors under the Other Term Loan Facility) legal assignment of Refund Guarantee in the form of Exhibit O-2 hereto or otherwise reasonably acceptable to the Joint Lead Arrangers and the Borrower and
customary for transactions of this type, along with appropriate notices and consents relating thereto (to the extent incorporated into or required pursuant to such Exhibit or otherwise agreed by the Borrower and the Facility Agent) (as modified,
supplemented or amended from time to time, the “
Vessel 1 Assignment of KfW Refund Guarantees
” and together with the Vessel 1 Assignment of KfW Refund Guarantee, the “
Assignments of KfW Refund Guarantees
”).
5.07
Collateral and Guaranty Requirements
. On or prior to the first Initial Borrowing Date, the Collateral and
Guaranty Requirements with respect to the Collateral Vessel shall have been satisfied or the Facility Agent shall have waived such requirements and/or conditioned such waiver on the satisfaction of such requirements within a specified period of
time.
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5.08
Consents Under Existing Credit Facilities
. On or prior to the first Initial
Borrowing Date, the Facility Agent shall have received evidence that all conditions, waivers, consents, acknowledgments and amendments in relation to any existing credit facilities of the Parent and/or any of its Subsidiaries required in connection
with or in order to permit the transactions hereunder (including, without limitation, any prepayments required in connection therewith) shall have been obtained and/or satisfied.
5.09
Process Agent
. On or prior to the first Initial Borrowing Date, the Facility Agent shall have received satisfactory evidence
from the Parent, the Borrower and any other applicable Credit Party that they have each appointed an agent in London for the service of process or summons in relation to each of the Credit Documents.
5.10
Equity Payment
. (a) On the Tranche A Initial Borrowing Date, the Facility Agent shall have received evidence, in form
and substance reasonably satisfactory to the Facility Agent, that Breakaway One shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for Vessel 1 (other than from the proceeds of Loans, and loans under the ECF
Facilities and the Other Term Loan Facility); and
(b) on the Tranche B Initial Borrowing Date, the Facility Agent shall have
received evidence, in form and substance reasonably satisfactory to the Facility Agent, that Breakaway Two shall have funded from cash on hand an amount equal to 1% of the Initial Construction Price for Vessel 2 (other than from the proceeds of
Loans, and loans under the ECF Facilities and the Other Term Loan Facility).
5.11
Financing Statements
. On each
Initial Borrowing Date, the Collateral Agent, in consultation with the applicable Credit Parties, shall have:
(a) prepared and filed proper financing statements (Form UCC-1 or the equivalent) fully prepared for filing under the UCC
or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or give notice to third parties, as the case may be, the security interests purported to be
created by (i) the Vessel 1 Assignment of Contracts and the Vessel 1 Assignment of KfW Refund Guarantees (if any) with respect to the Tranche A Initial Borrowing Date or (ii) the Vessel 2 Assignment of Contracts and the Vessel 2 Assignment
of KfW Refund Guarantees (if any) with respect to the Tranche B Initial Borrowing Date; and
(b) received
certified copies of lien search results (Form UCC-11) listing all effective financing statements that name each Credit Party as debtor and that are filed in the District of Columbia and Florida, together with Form UCC-3 Termination Statements (or
such other termination statements as shall be required by local law) fully prepared for filing if required by applicable laws for any financing statement which covers the Collateral except to the extent evidencing Permitted Liens.
5.12
Opinions of Counsel
. The Facility Agent shall have received from:
(a) O’Melveny & Myers LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special
New York counsel to the Parent and Borrower, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to the Effective
Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
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(b) Cains (or another counsel reasonably acceptable to the Joint Lead
Arrangers), special Isle of Man counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the Lenders prior to
the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(c) Cox Hallett Wilkinson (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bermudian counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of
the Lenders and dated (i) the first Initial Borrowing Date or (ii) the second Initial Borrowing Date, as applicable, in each case in substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise
reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(d)
White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent (for itself
and on behalf of the Lenders) and the Collateral Agent (for itself and on behalf of the Lenders) dated (i) the first Initial Borrowing Date or (ii) the second Initial Borrowing Date, as applicable, in each case, in substantially the form
delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(e) White & Case LLP (or another counsel reasonably acceptable to the Joint Lead Arrangers), special German
counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the
Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12;
(f) Graham Thompson & Co. (or another counsel reasonably acceptable to the Joint Lead Arrangers), special Bahamian counsel to the Credit Parties (or if the Collateral Vessel is not flagged in the
Bahamas, counsel qualified in the jurisdiction of the flag of the Collateral Vessel and reasonably satisfactory to the Facility Agent), an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in
substantially the form delivered to the Borrower and the Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12; and
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(g) Holland & Knight LLP (or another counsel reasonably acceptable
to the Joint Lead Arrangers) special Florida counsel to the Credit Parties, an opinion addressed to the Facility Agent and each of the Lenders and dated the first Initial Borrowing Date in substantially the form delivered to the Borrower and the
Lenders prior to the Effective Date, or otherwise reasonably satisfactory to the Joint Lead Arrangers, covering such matters set forth on Schedule 5.12.
5.13
Security Trust Deed
. On the first Initial Borrowing Date, the Security Trust Deed shall have been executed by the parties thereto and shall be in full force and effect.
5.14
Litigation
. On each Initial Borrowing Date, there shall be no actions, suits or proceedings (governmental or private) pending
or, to the Parent or the Borrower’s knowledge, threatened (i) with respect to this Agreement, any other Credit Document, any Other Term Loan Credit Document or any Export Credit Document, or (ii) which has had, or, if adversely
determined, could reasonably be expected to have, a Material Adverse Effect.
SECTION 6.
Conditions Precedent to each
Borrowing Date
. The obligation of each Lender to make Loans on each Borrowing Date is subject at the time of the making of such Loans to the satisfaction or (other than in the case of Sections 6.01, 6.02, 6.03, 6.04, 6.06 and 6.07) waiver of the
following conditions:
6.01
No Default; Representations and Warranties
. At the time of each Borrowing and also after
giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material respects both before and
after giving effect to such Borrowing with the same effect as though such representations and warranties had been made on the Borrowing Date in respect of such Borrowing (it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
6.02
Consents
. On or prior to each Borrowing Date, all necessary governmental (domestic and foreign) and material third party approvals and/or consents in connection with each Construction
Contract, the Refund Guarantees (to the extent issued on or prior to such Borrowing Date), each New Vessel, the Collateral Vessel and the other transactions contemplated hereby (except to the extent specifically addressed in other sections of
Section 5 or this Section 6) shall have been obtained and remain in effect. On each Borrowing Date, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse conditions upon this Agreement, the Transaction or the other transactions contemplated by the Credit Documents.
6.03
Refund Guarantees
. (a) On (i) the Tranche A Initial Borrowing Date, the Refund Guarantee for the Pre-delivery
Installment in respect of Vessel 1 to be paid on the Initial Borrowing Date (under and as defined in the Breakaway One Facility) shall have been issued and assigned to the Collateral Agent pursuant to the Vessel 1 Assignment of Contracts (or, if
such Refund Guarantee is issued by KfW IPEX-Bank GmbH, the Vessel 1 Assignment of KfW Refund Guarantees) and (ii) on each other Tranche A Borrowing Date other than the Vessel 1
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Delivery Date, any additional Refund Guarantees for Vessel 1 that have been issued since the Tranche A Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a
supplement to the relevant schedule to the Vessel 1 Assignment of Contracts (or, in the case of Refund Guarantees issued by KfW IPEX-Bank GmbH, a supplement to the relevant schedule of the Vessel 1 Assignment of KfW Refund Guarantees) to the
Collateral Agent with the updated information, in each case along with (to the extent incorporated in or required by the Vessel 1 Assignment of Contracts) an appropriate notice and consent relating thereto, and the Joint Lead Arrangers shall have
received reasonably satisfactory evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to (x) the amount of the corresponding Pre-delivery Installment to be paid by Breakaway One to the Yard minus (y) the
amount paid by the Yard to Breakaway One in respect of the corresponding Pre-delivery Installment under Article 8, Clause 2.8(i), (ii), (iii) or (iv) as the case may be, of the Vessel 1 Construction Contract pursuant to the terms of each
Refund Guarantee, and the Joint Lead Arrangers shall have received reasonably satisfactory evidence to such effect.
(b) On
(i) the Tranche B Initial Borrowing Date, the Refund Guarantee for the Pre-delivery Installment in respect of Vessel 2 to be paid on the Initial Borrowing Date (under and as defined in the Breakaway Two Facility) shall have been issued and
assigned to the Collateral Agent pursuant to the Vessel 2 Assignment of Contracts (or, if such Refund Guarantee is issued by KfW IPEX-Bank GmbH, the Vessel 2 Assignment of KfW Refund Guarantees) and (ii) on each other Tranche B Borrowing Date
other than the Vessel 2 Delivery Date, any additional Refund Guarantees for Vessel 2 that have been issued since the Tranche B Initial Borrowing Date shall have been assigned to the Collateral Agent by delivering a supplement to the relevant
schedule to the Vessel 2 Assignment of Contracts (or, in the case of Refund Guarantees issued by KfW IPEX-Bank GmbH, a supplement to the relevant schedule of the Vessel 2 Assignment of KfW Refund Guarantees) to the Collateral Agent with the updated
information, in each case along with (to the extent incorporated in or required by the Vessel 2 Assignment of Contracts) an appropriate notice and consent relating thereto, and the Joint Lead Arrangers shall have received reasonably satisfactory
evidence to such effect. Each Refund Guarantee shall secure a principal amount equal to (x) the amount of the corresponding Pre-delivery Installment to be paid by Breakaway Two to the Yard minus (y) the amount paid by the Yard to Breakaway
Two in respect of the corresponding Pre-delivery Installment under Article 8, Clause 2.8(i), (ii), (iii) or (iv) as the case may be, of the Vessel 2 Construction Contract pursuant to the terms of each Refund Guarantee, and the Joint Lead
Arrangers shall have received reasonably satisfactory evidence to such effect.
6.04
ECF Payment
. On each Borrowing
Date (other than on an Initial Borrowing Date) on which the proceeds of Loans are being used to fund (or reimburse) a payment under a Construction Contract, the relevant ECF Borrower shall have paid (other than from proceeds of Loans or loans under
the Other Term Loan Facility) [*] of the amount due on such Borrowing Date under the Construction Contract, which payment may be made from proceeds of ECF Loans under the relevant ECF Facility.
6.05
Fees, Costs, etc.
On each Borrowing Date, the Borrower shall have paid to the Agents, the Joint Lead Arrangers and the
Lenders all costs, fees, expenses (including, without limitation, reasonable fees and expenses of White & Case LLP and local and maritime counsel and consultants) and other compensation contemplated hereby payable to the Agents, the
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Joint Lead Arrangers and the Lenders or payable in respect of the transactions contemplated hereunder, to the extent then due;
provided
that any such costs, fees and expenses and other
compensation shall have been invoiced to the Borrower at least three Business Days prior to such Borrowing Date.
6.06
Construction Contract
. On each Borrowing Date, the Borrower shall have certified that all conditions and requirements under the relevant Construction Contract required to be satisfied on such Borrowing Date, including in connection with the
respective payment installments to be made to the Yard on such Borrowing Date, shall have been satisfied (including, but not limited to, the relevant ECF Borrower’s payment to the Yard of the portion of the payment installment on the relevant
New Vessel that is not being financed with proceeds of the Loans), other than those that are not materially adverse to the Lenders, it being understood that any litigation between the Yard and the Parent and/or Borrower shall be deemed to be
materially adverse to the Lenders.
6.07
Hermes Cover
. On each Borrowing Date, (x) the Facility Agent shall have
received evidence from the Hermes Agent that the Hermes Cover is in full force and effect on terms acceptable to the Joint Lead Arrangers (it being understood that each Joint Lead Arranger shall have confirmed to the Hermes Agent that the terms of
the Hermes Cover are acceptable), and all due and owing Hermes Premium to be paid in connection therewith shall have been paid in full,
provided
it is understood and agreed that the Hermes Cover shall have been granted as soon as the Hermes
Agent and/or KfW IPEX-Bank GmbH receives the Declaration of Guarantee (
Gewährleistungs-Erklärung
) from Hermes and (y) all Loans and other financing to be made pursuant hereto shall be in material compliance with the Hermes
Cover and all applicable requirements of law or regulation.
6.08
Notice of Borrowing
. Prior to the making of each
Loan, the Facility Agent shall have received the Notice of Borrowing required by Section 2.03(a).
6.09
Solvency
Certificate
. On each Borrowing Date, Parent shall cause to be delivered to the Facility Agent a solvency certificate from a senior financial officer of Parent, in substantially the form of Exhibit J or otherwise reasonably acceptable to the
Facility Agent, which shall be addressed to the Facility Agent and each of the Lenders and dated such Borrowing Date, setting forth the conclusion that, after giving effect to the transactions hereunder (including the incurrence of all the financing
contemplated with respect thereto and the purchase of each New Vessel), the Parent and its Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the Indebtedness incurred in connection therewith, and will not be
left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
6.10
Litigation
. On each Borrowing Date, other than as set forth on Schedule 6.10, there shall be no actions, suits or proceedings
(governmental or private) pending or, to the Parent or the Borrower’s knowledge, threatened (i) with respect to this Agreement or any other Credit Document or (ii) which have had, or, if adversely determined, could reasonably be
expected to have, a Material Adverse Effect.
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The acceptance of the proceeds of each Loan shall constitute a representation and warranty
by the Borrower to the Facility Agent and each of the Lenders that all of the applicable conditions specified in Section 5, this Section 6 and Section 7 applicable to such Loan have been satisfied as of that time.
SECTION 7.
Conditions Precedent to each Delivery Date
. The obligation of each Lender to make Loans on a Delivery Date is subject
at the time of making such Loans to the satisfaction of the following conditions:
7.01
Delivery of Vessel
. On each
Delivery Date, the relevant New Vessel shall have been delivered in accordance with the terms of the relevant Construction Contract, other than those changes that would not be materially adverse to the interests of the Lenders.
7.02
Evidence of 90% Payment
. On the Delivery Date, the relevant ECF Borrower shall have provided funding for an amount in the
aggregate equal to the sum of at least (x) 90% of the Initial Construction Price for the relevant New Vessel out of which up to 80% of the Initial Construction Price may be funded by ECF Loans under the relevant ECF Facility, (y) [*] of
the Permitted Change Orders, out of which up to [*] of such Permitted Change Orders may be funded by ECF Loans under the relevant ECF Facility and (z) [*] of the difference between the Final Construction Price and the Adjusted Construction
Price for the relevant New Vessel (in each case, other than from proceeds of Loans or loans under the Other Term Loan Facility, but with respect to clauses (x) and (y) only, giving effect to proceeds from ECF Loans under the relevant ECF
Facility) and the Facility Agent shall have received a certificate from an officer of the relevant ECF Borrower to such effect.
7.03
Hermes Compliance; Compliance with Applicable Laws and Regulations
. On the Delivery Date, all Loans and other financing to be
made pursuant hereto shall be in material compliance with all applicable requirements of law or regulation and the Hermes Cover.
SECTION 8.
Representations and Warranties
. In order to induce the Lenders to enter into this Agreement and to make the Loans, the Borrower or each Credit Party, as applicable, makes the following
representations and warranties, in each case on a daily basis, all of which shall survive the execution and delivery of this Agreement and the making of the Loans:
8.01
Entity Status
. The Parent and each of the other Credit Parties (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the
jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and
is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in
good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
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8.02
Power and Authority
. Each of the Credit Parties has the power to enter into and
perform this Agreement (as applicable) and those of the other Credit Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorize the entry into and performance of this
Agreement and such other Credit Documents and such transactions. This Agreement constitutes legal, valid and binding obligations of the Parent and the Borrower enforceable in accordance with its terms and in entering into this Agreement and
borrowing the Loans (in the case of the Borrower), the Parent and the Borrower are each acting on their own account. Each other Credit Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Credit Party
expressed to be a party thereto enforceable in accordance with their respective terms
8.03
No Violation
. The entry
into and performance of this Agreement (as applicable), the other Credit Documents and the transactions contemplated hereby and thereby do not and will not conflict with:
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(a)
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any law or regulation or any official or judicial order; or
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(b)
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the constitutional documents of any Credit Party; or
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(c)
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except as set forth on Schedule 8.03, any agreement or document to which any member of the NCLC Group is a party or which is binding upon such Credit Party or any of
its assets, nor result in the creation or imposition of any Lien on a Credit Party or its assets pursuant to the provisions of any such agreement or document (it being understood that the Export Credit Facilities and the Other Term Loan Facility
shall create senior and pari passu Liens, respectively, on certain Collateral).
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8.04
Governmental
Approvals
. Except for (x) the filing of those Security Documents which require registration in the Companies Registries in England and Wales, the Federal Republic of Germany, the Isle of Man Department of Economic Development, the Bahamas,
any state of the United States of America and/or with the Registrar of Companies in Bermuda, which filing must be completed within (i) 21 days of the execution and delivery of the relevant Security Document(s) in the case of England and Wales
and (ii) one month of the execution and delivery of the relevant Security Document(s) in the case of the Isle of Man, and (y) the registration of the Vessel Mortgage through the Bahamas Maritime Authority, all authorizations, approvals,
consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Credit
Documents and the transactions contemplated thereby have been obtained or effected and are in full force and effect except for matters in respect of (I) the Construction Risk Insurances and the Refund Guarantees (in each case to the extent that
such Collateral has not yet been delivered) and (II) Collateral to be delivered on the Delivery Date.
8.05
Financial
Statements; Financial Condition
. (a)(i) The audited consolidated balance sheets of the Parent and its Subsidiaries as at December 31, 2007, December 31, 2008 and December 31, 2009 and the unaudited consolidated balance sheets
of the Parent and its Subsidiaries as at June 30, 2010 and the related consolidated statements of operations and of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the
case of the annual financial statements, an
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unqualified report from PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the respective fiscal years or quarters, as the case may be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared
in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).
(ii) The
pro
forma
consolidated balance sheet of the Parent and its Subsidiaries as of June 30, 2010 (after giving effect to the Transaction and the financing therefor), a copy of which
has been furnished to the Lenders prior to the first Initial Borrowing Date, presents a good faith estimate in all material respects of the
pro
forma
consolidated financial position of the Parent and its Subsidiaries as of such date.
(b) Since December 31, 2009, nothing has occurred that has had or could reasonably be expected to have a Material
Adverse Effect.
8.06
Litigation
. No litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency (including but not limited to investigative proceedings) are current or pending or, to the Parent or the Borrower’s knowledge, threatened, which might, if adversely determined, have a Material Adverse Effect.
8.07
True and Complete Disclosure
. Each Credit Party has fully disclosed in writing to the Facility Agent all facts relating to
such Credit Party which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.
8.08
Use of Proceeds
. (a) All proceeds of the Tranche A Loans may be used only to finance (i) up to 10% of the Initial
Construction Price of Vessel 1 and (ii) up to [*] of the Hermes Premium, and (b) all proceeds of the Tranche B Loans may be used to finance (i) up to 10% of the Initial Construction Price of Vessel 2 and (ii) up to [*] of the
related Hermes Premium.
8.09
Tax Returns and Payments
. The NCLC Group have complied with all taxation laws in all
jurisdictions in which it is subject to Taxation and has paid all material Taxes due and payable by it; no material claims are being asserted against it with respect to Taxes, which might, if such claims were successful, have a material adverse
effect on the ability of any Credit Party to perform its obligations under the Credit Documents or could otherwise be reasonably expected to have a Material Adverse Effect. As at the Effective Date all amounts payable by the Parent and the Borrower
hereunder may be made free and clear of and without deduction for or on account of any Taxation in the Parent and the Borrower’s jurisdiction.
8.10
No Material Misstatements
. (a) All written information (other than the Projections, estimates and information of a general economic nature or general industry nature) (the
“
Information
”) concerning the Parent and its Subsidiaries, and the transactions contemplated hereby prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or any Agent in connection with
the transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was
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furnished to the Lenders or any Agent and as of the Effective Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material
fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general economic nature prepared by or on behalf of the Parent, the Borrower or
any of their respective representatives and that have been made available to any Lenders or any Agent in connection with the transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by the Parent,
the Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from the Projections), as of the date such Projections and estimates were furnished to the Lenders and as of the Effective Date, and
(ii) as of the Effective Date, have not been modified in any material respect by the Parent or the Borrower.
8.11
The
Security Documents
. (a) None of the Collateral is subject to any Liens except Permitted Liens.
(b) After the
execution and registration thereof, the Vessel Mortgage will create, as security for the obligations purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on the Collateral Vessel in favor of the
Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on
the Collateral Vessel may be subject to the Permitted Liens related thereto, including the Permitted Liens held by the creditors under the Senior Loan Agreements) and subject to no other Liens (other than Permitted Liens related thereto, including
the Permitted Liens held pursuant to the Senior Loan Agreements).
(c) After the execution and delivery thereof and upon the
taking of the actions mentioned in the immediately succeeding sentence, each of the Security Documents will create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable fully perfected security
interest in and Lien on all right, title and interest of the Credit Parties party thereto in the Collateral described therein, subject only to Permitted Liens. Subject to Sections 5.07, 8.04 and this Section 8.11 and the definition of
“Collateral and Guaranty Requirements,” no filings or recordings are required in order to perfect the security interests created under any Security Document except for filings or recordings which shall have been made on or prior to the
execution of such Security Document.
8.12
Capitalization
. All the Capital Stock, as set forth on Schedule 8.12, in the
Borrower and each other Credit Party (other than the Parent) is legally and beneficially owned directly or indirectly by the Parent and, except as permitted by Section 10.02, such structure shall remain so until the later of the Tranche A Loan
Maturity Date and the Tranche B Loan Maturity Date.
8.13
Subsidiaries
. On and as of the first Initial Borrowing Date,
other than in respect of Dormant Subsidiaries (i) the Parent has no Subsidiaries other than those Subsidiaries listed on Schedule 8.13 which Schedule identifies the correct legal name, direct owner,
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percentage ownership and jurisdiction of organization of the Borrower and each such other Subsidiary on the date hereof, (ii) all outstanding shares of the Borrower and each other Subsidiary
of the Parent have been duly and validly issued, are fully paid and non-assessable and have been issued free of preemptive rights, and (iii) neither the Borrower nor any Subsidiary of the Parent has outstanding any securities convertible into
or exchangeable for its Capital Stock or outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of or any calls, commitments or
claims of any character relating to, its Capital Stock or any stock appreciation or similar rights.
8.14
Compliance with
Statutes, etc.
The Parent and each of its Subsidiaries is in compliance in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign,
in respect of the conduct of its business and the ownership of its property, except such noncompliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.15
Winding-up, etc.
None of the events contemplated in clauses (a), (b), (c) or (d) of Section 11.05 has occurred
with respect to any Credit Party.
8.16
No Default
. No event has occurred which constitutes a Default or Event of
Default under or in respect of any Credit Document to which any Credit Party is a party or by which the Parent or any of its Subsidiaries may be bound (including (inter alia) this Agreement) and no event has occurred which constitutes a default
under or in respect of any agreement or document to which any Credit Party is a party or by which any Credit Party may be bound, except to an extent as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
8.17
Pollution and Other Regulations
. Each of the Credit Parties:
(a) is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements
relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters),
including without limitation, laws, regulations, conventions and agreements relating to (i) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil,
hazard substances, petroleum and petroleum products and by-products (“
Materials of Environmental Concern
”) or (ii) Environmental Law;
(b) has all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Law (“
Environmental
Approvals
”) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted;
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(c) has not received any notice, claim, action, cause of action, investigation or demand by
any other person, alleging potential liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages,
personal injuries, attorneys’ fees and expenses or fines or penalties, in each case arising out of, based on or resulting from (i) the presence or release or threat of release into the environment of any Materials of Environmental Concern
at any location, whether or not owned by such person or (ii) Environmental Claim,
which is, or are, in each case,
material; and
there are no circumstances that may prevent or interfere with such full compliance in the future.
There are no Environmental Claims pending or threatened against any of the Credit Parties which the Parent or the Borrower, in its
reasonable opinion, believes to be material.
There are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern, that the Parent or the Borrower reasonably believes could form the basis of any bona fide material
Environmental Claim against any of the Credit Parties.
8.18
Ownership of Assets
. Except as permitted by
Section 10.02, each member of the NCLC Group has good and marketable title to all its assets which is reflected in the audited accounts referred to in Section 8.05(a)
8.19
Concerning the Collateral Vessel
. (a) The name, registered owner, official number, and jurisdiction of registration and
flag of the Collateral Vessel is set forth on Schedule 8.19 (as updated from time to time by the Borrower pursuant to Section 9.13 with respect to flag jurisdiction, and otherwise (with respect to name, registered owner, official number and
jurisdiction of registration) upon advance notice and in a manner that does not interfere with the Lenders’ Liens on the Collateral,
provided
that the Borrower shall take all steps requested by the Collateral Agent to preserve and
protect the Liens created by the Security Documents on the Collateral Vessel) and (b) as of the first Initial Borrowing Date, the Collateral Vessel is and will be operated in material compliance with all applicable law, rules and regulations.
8.20
Citizenship
. None of the Credit Parties has an establishment in the United Kingdom within the meaning of the
Overseas Companies Regulation 2009 or a place of business in the United States (in each case, except as already disclosed) or any other jurisdiction which requires any of the Security Documents to be filed or registered in that jurisdiction to
ensure the validity of the Security Documents to which it is a party unless (x) all such filings and registrations have been made or will be made as provided in Sections 5.07, 8.04 and 8.11 and the definition of “Collateral and Guaranty
Requirements” and (y) prompt notice of the establishment of such a place of business is given to the Facility Agent and the requirements set forth in Section 9.10 have been satisfied. The Borrower and each other Credit Party which
owns or operates, or will own or operate, the Collateral Vessel at any time is, or will be, qualified to own and operate the Collateral Vessel under the laws of the Bahamas or such other jurisdiction in which the Collateral Vessel is permitted, or
will be permitted, to be flagged in accordance with the terms of Section 9.13.
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8.21
Collateral Vessel Classification
. The Collateral Vessel is classified in the
highest class available for vessels of its age and type with a classification society listed on Schedule 8.21 hereto or another internationally recognized classification society reasonably acceptable to the Collateral Agent, free of any overdue
conditions or recommendations.
8.22
No Immunity
. None of the Credit Parties nor any of their respective assets enjoys
any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Credit Documents or by any relevant or applicable law.
8.23
Fees, Governing Law and Enforcement
. No fees or taxes, including, without limitation, stamp, transaction, registration or
similar taxes, are required to be paid to ensure the legality, validity, or enforceability of this Agreement or any of the other Credit Documents other than recording taxes which have been, or will be, paid as and to the extent due. Under the laws
of the Bahamas or any other jurisdiction where the Collateral Vessel is flagged, the choice of the laws of England as set forth in the Credit Documents which are stated to be governed by the laws of England is a valid choice of law, and the
irrevocable submission by each Credit Party to jurisdiction and consent to service of process and, where necessary, appointment by such Credit Party of an agent for service of process, in each case as set forth in such Credit Documents, is legal,
valid, binding and effective.
8.24
Form of Documentation
. Each of the Credit Documents is in proper legal form (under
the laws of England, the Bahamas, the Isle of Man, Bermuda and each other jurisdiction where the Collateral Vessel is flagged or where the Credit Parties are domiciled) for the enforcement thereof under such laws. To ensure the legality, validity,
enforceability or admissibility in evidence of each such Credit Document in England, the Bahamas, the Isle of Man and/or Bermuda it is not necessary that any Credit Document or any other document be filed or recorded with any court or other
authority in England, the Bahamas, the Isle of Man and/or Bermuda, except as have been made, or will be made, in accordance with Sections 5, 6, 7 and 8, as applicable.
8.25
Pari Passu or Priority Status
. The claims of the Agents and the Lenders against the Parent or the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured
creditors of the Parent or the Borrower (other than claims of such creditors to the extent that they are statutorily preferred) and in priority to the claims of any creditor of the Parent or the Borrower who is also a Credit Party.
8.26
Solvency
. The Credit Parties, taken as a whole, are and shall remain, after the advance to them of the Loans or any of such
Loans, solvent in accordance with the laws of Bermuda, the United States, England, the Isle of Man and the Bahamas and in particular with the provisions of the Bankruptcy Code and the requirements thereof.
8.27
No Undisclosed Commissions
. There are and will be no commissions, rebates, premiums or other payments by or to or on account
of any Credit Party, their shareholders or directors in connection with the Transaction as a whole other than as disclosed to the Facility Agent or any other Agent in writing.
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8.28
Completeness of Documentation
. The copies of each Management Agreement,
Construction Contract, each Refund Guarantee and, to the extent applicable, Supervision Agreement delivered to the Facility Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto
enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable,
unless replaced by a management agreement or management agreements, refund guarantees or, to the extent applicable, a supervision agreement, as the case may be, reasonably satisfactory to the Facility Agent.
8.29
Money Laundering
. Any borrowing by the Borrower hereunder, and the performance of its obligations hereunder and under the
other Security Documents, will be for its own account and will not, to the best of its knowledge, involve any breach by it of any law or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive
(2005/EC/60) of the European Parliament and of the Council of the European Communities.
SECTION 9.
Affirmative
Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the first Initial Borrowing Date and until the Total Commitment has terminated and the Loans, together with interest, Commitment Commission and all other
obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense reimbursement claims for which no claim has been made):
9.01
Information Covenants
. The Parent will provide to the Facility Agent (or will procure the provision of):
(a)
Quarterly Financial Statements
. Within 60 days after the close of the first three fiscal quarters in each fiscal year of the Parent, the consolidated balance sheets of the Parent and its
Subsidiaries as at the end of such quarterly accounting period and the related consolidated statements of operations and cash flows, in each case for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last
day of such quarterly accounting period, and in each case, setting forth comparative figures for the related periods in the prior fiscal year, all of which shall be certified by a financial officer of the Borrower, subject to normal year-end audit
adjustments and the absence of footnotes;
(b)
Annual Financial Statements
. Within 120 days after the close of each
fiscal year of the Parent, the consolidated balance sheets of the Parent and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of operations and changes in shareholders’ equity and of cash flows for such
fiscal year setting forth comparative figures for the preceding fiscal year and audited by independent certified public accountants of recognized international standing, together with an opinion of such accounting firm (which opinion shall not be
qualified as to scope of audit or as to the status of the Parent as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Parent
and its Subsidiaries on a consolidated basis in accordance with GAAP;
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(c)
Valuations
. After the first Initial Borrowing Date, together with delivery of the
financial statements described in Section 9.01(b) for each fiscal year, and at any other time within 15 days of a written request from the Facility Agent, appraisal reports of recent date (but in no event earlier than 90 days before the
delivery of such reports) from two Approved Appraisers or such other independent firm of shipbrokers or shipvaluers nominated by the Borrower and approved by the Facility Agent (acting on the instructions of the Required Lenders) or failing such
nomination and approval, appointed by the Facility Agent (acting on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Facility Agent, physical inspection and on the basis of a sale
for prompt delivery for cash at arm’s length on normal commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the Collateral Vessel), stating
the then current fair market value of the Collateral Vessel. All such appraisals shall be conducted by, and made at the expense of, the Borrower (it being understood that the Facility Agent may and, at the request of the Lenders, shall, upon prior
written notice to the Borrower (which notice shall identify the names of the relevant appraisal firms), obtain such appraisals and that the cost of all such appraisals will be for the account of the Borrower);
provided
that, unless an Event
of Default shall then be continuing, in no event shall the Borrower be required to pay for appraisal reports from two appraisers on more than one occasion in any fiscal year of the Borrower, with the cost of any such reports in excess thereof to be
paid by the Lenders on a
pro
rata
basis;
(d)
Filings
. Promptly, copies of all financial information,
proxy materials and other information and reports, if any, which the Parent or any of its Subsidiaries shall file with the Securities and Exchange Commission (or any successor thereto);
(e)
Projections
. (i) As soon as practicable (and in any event within 120 days after the close of each fiscal year),
commencing with the fiscal year ending December 31, 2010, annual cash flow projections on a consolidated basis of the NCLC Group showing on a monthly basis advance ticket sales (for at least 12 months following the date of such statement) for
the NCLC Group;
(ii) As soon as practicable (and in any event not later than January 31 of each fiscal year):
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(x)
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a budget for the NCLC Group for such new fiscal year including a 12 month liquidity budget for such new fiscal year;
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(y)
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updated financial projections of the NCLC Group for at least the next five years (including an income statement and quarterly break downs for the first of those five
years); and
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(z)
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an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings;
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(f)
Officer’s Compliance Certificates
. As soon as practicable (and in any event
within 60 days after the close of each of the first three quarters of its fiscal year and within 120 days after the close of each fiscal year), a statement signed by one of the Parent’s financial officers substantially in the form of Exhibit L
(commencing with the fourth quarter of the fiscal year ending December 31, 2010) and such other information as the Facility Agent may reasonably request;
(g)
Litigation
. On a quarterly basis, details of any material litigation, arbitration or administrative proceedings affecting any Credit Party which are instituted and served, or, to the knowledge
of the Parent or the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding $25,000,000 or the equivalent in another currency);
(h)
Notice of Event of Default
. Promptly upon (i) any Credit Party becoming aware thereof (and in any event within three
Business Days), notification of the occurrence of any Event of Default and (ii) the Facility Agent’s request from time to time, a certificate stating whether any Credit Party is aware of the occurrence of any Event of Default;
(i)
Status of Foreign Exchange Arrangements
. Promptly upon reasonable request from any Joint Lead Arranger through the Facility
Agent, an update on the status of the Parent and the Borrower’s foreign exchange arrangements with respect to the New Vessels, the Other Term Loan Facility, the Export Credit Facilities and this Agreement; and
(j)
Other Information
. Promptly, such further information in its possession or control regarding its financial condition and
operations and those of any company in the NCLC Group as the Facility Agent may reasonably request.
All accounts required
under this Section 9.01 shall be prepared in accordance with GAAP and shall fairly represent in all material respects the financial condition of the relevant company.
9.02
Books and Records; Inspection
. The Parent will keep, and will cause each of its Subsidiaries to keep, proper books of record and account in all material respects, in which materially proper
and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Parent and its Subsidiaries in accordance with GAAP. The Parent will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of the Facility Agent at the reasonable request of any Joint Lead Arranger to visit and inspect, under guidance of officers of the Parent or such Subsidiary, any of the properties of the Parent or such Subsidiary, and to
examine the books of account of the Parent or such Subsidiary and discuss the affairs, finances and accounts of the Parent or such Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all upon
reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Facility Agent at the reasonable request of any such Joint Lead Arranger may reasonably request.
9.03
Maintenance of Property; Insurance
. The Parent will (x) keep, and will procure that each of its Subsidiaries keeps, all
of its real property and assets properly maintained and in existence and will comprehensively insure, and will procure that each of its Subsidiaries
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comprehensively insures, for such amounts and of such types as would be effected by prudent companies carrying on business similar to the Parent or its Subsidiaries (as the case may be) and
(y) maintain (or cause the Borrower to maintain) insurance (including, without limitation, hull and machinery, war risks, loss of hire (if applicable), protection and indemnity insurance as set forth on Schedule 9.03 (the “
Required
Insurance
”) with respect to the Collateral Vessel at all times.
9.04
Corporate Franchises
. The Parent will,
and will cause each of its Subsidiaries to, do all such things as are necessary to maintain its corporate existence (except as permitted by Section 10.02) in good standing and will ensure that it has the right and is duly qualified to conduct
its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business, except, in the case of Subsidiaries that are not Credit Parties, to the extent that a
failure to do so could not reasonably be expected to have a Material Adverse Effect.
9.05
Compliance with Statutes,
etc
. The Parent will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions (including all laws and regulations relating to money laundering) imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, except such non-compliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
9.06
Hermes Cover
. (a) The terms and conditions of the Hermes Cover are incorporated herein and in so far
as they impose terms, conditions and/or obligations on the Collateral Agent and/or the Facility Agent and/or the Hermes Agent and/or the Lenders in relation to the Borrower or any other Credit Party then such terms, conditions and obligations are
binding on the parties hereto and further in the event of any conflict between the terms of the Hermes Cover and the terms hereof the terms of the Hermes Cover shall be paramount and prevail. For the avoidance of doubt, neither the Parent nor the
Borrower has any interest or entitlement in the proceeds of the Hermes Cover. In particular, but without limitation, the Borrower shall pay any difference between the amount of the Loans drawn to pay the Hermes Premium, and the Hermes Premium.
(b) The Borrower shall at all times promptly pay all due and owing Hermes Premium.
9.07
End of Fiscal Years
. The Parent and the Borrower will maintain their fiscal year ends as in effect on the Effective Date.
9.08
Performance of Obligations
. The Parent will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security agreement and other debt instrument (including, without limitation, the Credit Documents) by which it is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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9.09
Payment of Taxes
. The Parent will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which,
if unpaid, might become a Lien not otherwise permitted under Section 10.01,
provided
that neither the Parent nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with generally accepted accounting principles.
9.10
Further Assurances
. (a) The Borrower will, from time to time on being required to do so by the Facility Agent or the Hermes Agent, do or procure the doing of all such acts and/or execute
or procure the execution of all such documents in a form reasonably satisfactory to the Facility Agent or the Hermes Agent (as the case may be) as the Facility Agent or the Hermes Agent may reasonably consider necessary for giving full effect to any
of the Credit Documents or securing to the Agents and/or the Lenders or any of them the full benefit of the rights, powers and remedies conferred upon the Agents and/or the Lenders or any of them in any such Credit Document.
(b) The Borrower hereby authorizes the Collateral Agent to file one or more financing or continuation statements under the UCC (or any
non-U.S. equivalent thereto), and amendments thereto, relative to all or any part of the Collateral without the signature of the Borrower, where permitted by law. The Collateral Agent will promptly send the Borrower a copy of any financing or
continuation statements which it may file without the signature of the Borrower and the filing or recordation information with respect thereto.
(c) If at any time an ECF Borrower shall enter into a Supervision Agreement pursuant to the relevant Construction Contract, such ECF Borrower shall, substantially simultaneously therewith, duly authorize,
execute and deliver a valid and effective second-priority (junior only to the Liens of the secured party under the relevant Export Credit Facility and pari passu only to the Liens of the secured party under the Other Term Loan Facility) legal
assignment in favor of the Collateral Agent of all of such ECF Borrower’s present and future interests in and benefits under such Supervision Agreement, which such assignment shall be in form and substance reasonably acceptable to the Facility
Agent and customary for this type of transaction.
9.11
Ownership of Subsidiaries
. Other than “director qualifying
shares” and similar requirements, the Parent shall at all times directly or indirectly own 100% of the Capital Stock or other Equity Interests of the Borrower (except as permitted by Section 10.02).
9.12
Consents and Registrations
. The Parent and the Borrower shall obtain, and for so long as such ECF Borrower is a Credit Party,
the Parent shall procure that the ECF Borrowers obtain (and shall, at the request of the Facility Agent, promptly furnish certified copies to the Facility Agent of) all such authorizations, approvals, consents, licenses and exemptions as may be
required under any applicable law or regulation to enable it or any Credit Party to perform its obligations under, and ensure the validity or enforceability of, each of the Credit Documents are obtained and promptly renewed from time to time and
will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before an Initial Borrowing Date, the Borrower will procure the filing or registration within applicable
time limits of each applicable Security Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents.
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9.13
Flag of Collateral Vessel
. (a) The Borrower shall cause the Collateral
Vessel to be registered under the laws and flag of the Bahamas or, provided that the requirements of a Flag Jurisdiction Transfer are satisfied, another Acceptable Flag Jurisdiction. Notwithstanding the foregoing, the relevant Credit Party may
transfer the Collateral Vessel to an Acceptable Flag Jurisdiction pursuant to the requirements set forth in the definition of “Flag Jurisdiction Transfer”.
(b) Except as permitted by Section 10.02, the Borrower will own the Collateral Vessel and will procure that the Collateral Vessel is traded within the NCLC Fleet from the first Initial Borrowing Date
until the later of the Tranche A Loan Maturity Date and the Tranche B Loan Maturity Date.
(c) The Borrower will at all times
engage the Manager (or a replacement manager reasonably acceptable to the Facility Agent) to provide the commercial and technical management and crewing of the Collateral Vessel.
9.14
“Know Your Customer” and Other Similar Information
. The Parent will, and will cause the Credit Parties, to provide
(i) the “Know Your Customer” information required pursuant to the PATRIOT Act and applicable money laundering provisions and (ii) such other documentation and evidence necessary in order for the Lenders to carry out and be
reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the Facility Agent, the Hermes Agent or any Lender in connection with each of the
Facility Agent’s, the Hermes Agent’s and each Lender’s internal compliance regulations.
SECTION 10.
Negative Covenants
. The Parent and the Borrower hereby covenant and agree that on and after the first Initial Borrowing Date and until all Commitments have terminated and the Loans, together with interest, Commitment Commission and all other
Credit Document Obligations incurred hereunder and thereunder, are paid in full (other than contingent indemnification and expense reimbursement claims for which no claim has been made):
10.01
Liens
. The Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any Collateral, whether now owned or hereafter acquired, or sell any such Collateral subject to an understanding or agreement, contingent or otherwise, to repurchase such Collateral (including sales of accounts
receivable with recourse to the Parent or any of its Subsidiaries);
provided
that the provisions of this Section 10.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein
referred to as “
Permitted Liens
”):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with generally
accepted accounting principles;
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(ii) Liens imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for Borrowed Money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x) which do not in
the aggregate materially detract from the value of the Collateral and do not materially impair the use thereof in the operation of the business of the Parent or such Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Collateral subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule
10.01, without giving effect to any renewals or extensions of such Liens,
provided
that the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding on the Effective Date,
less any repayments of principal thereof;
(iv) Liens created pursuant to the Security Documents including,
without limitation, Liens created in relation to any Interest Rate Protection Agreement or Other Hedging Agreement;
(v) Liens arising out of judgments, awards, decrees or attachments with respect to which the Parent or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review,
provided
that the aggregate amount of all such judgments, awards, decrees or attachments shall not constitute an Event of Default under Section 11.09;
(vi) Liens in respect of seamen’s wages which are not past due and other maritime Liens arising in the ordinary
course of business up to an aggregate amount of $10,000,000;
(vii) Liens on the ECF Collateral securing the
obligations under the Export Credit Facilities and the Other Term Loan Facility and any interest rate protection agreement or other hedging agreement in connection therewith, provided that such Liens are subject to the provisions of the ECF
Intecreditor Agreements;
(viii) Liens on the Jewel Collateral securing the obligations under the Senior Loan
Agreements and any interest rate protection agreement or other hedging agreement in connection therewith, provided that such Liens are subject to the provisions of the Jewel Intercreditor Agreement; and
(ix) Liens which rank after the Liens created by the Security Documents to secure the performance of bids, tenders, bonds
or contracts;
provided
that (a) such bids, tenders, bonds or contracts directly relate to the Collateral Vessel, are incurred in the ordinary course of business and do not relate to the incurrence of Indebtedness for Borrowed Money, and
(b) at any time outstanding, the aggregate amount of Liens under this clause (ix) shall not secure greater than $25,000,000 of obligations.
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In connection with the granting of Liens described above in this Section 10.01 by the
Parent or any of its Subsidiaries, the Facility Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien subordination
agreements in favor of the holder or holders of such Liens, in respect of the item or items of equipment or other assets subject to such Liens).
10.02
Consolidation, Merger, Amalgamation, Sale of Assets, Acquisitions, etc
. (a) The Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its
affairs or enter into any transaction of merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of all or substantially all of its property or assets, or make any Acquisitions, except that:
(i) any Subsidiary of the Parent (other than the Borrower) may merge, amalgamate or consolidate with and into, or be
dissolved or liquidated into, the Parent or other Subsidiary of the Parent (other than the Borrower), so long as (x) in the case of any such merger, amalgamation, consolidation, dissolution or liquidation involving the Parent, the Parent is the
surviving or continuing entity of any such merger, amalgamation, consolidation, dissolution or liquidation and (y) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation, dissolution or liquidation) and all actions
required to maintain said perfected status have been taken;
(ii) the Parent and any Subsidiary of the Parent
may make dispositions of assets so long as such disposition is permitted pursuant to Section 10.02(b);
(iii) the Parent and any Subsidiary of the Parent (other than the Borrower) may make Acquisitions;
provided
that
(x) the Parent provides evidence reasonably satisfactory to the Required Lenders that the Parent will be in compliance with the financial undertakings contained in Sections 10.06 to 10.09 after giving effect to such Acquisition on a pro forma
basis and (y) no Default or Event of Default will exist after giving effect to such Acquisition; and
(iv)
the Parent and any Subsidiary of the Parent (other than the Borrower) may establish new Subsidiaries.
(b) The Parent will
not, and will not permit any other company in the NCLC Group to, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a
substantial part of its assets except that the following disposals shall not be taken into account:
(i)
dispositions made in the ordinary course of trading of the disposing entity (excluding a disposition of the Collateral Vessel or other Collateral) including without limitation, the payment of cash as consideration for the purchase or acquisition of
any asset or service or in the discharge of any obligation incurred for value in the ordinary course of trading;
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(ii) dispositions of cash raised or borrowed for the purposes for which such
cash was raised or borrowed;
(iii) dispositions of assets (other than the Collateral Vessel or other
Collateral) owned by any member of the NCLC Group in exchange for other assets comparable or superior as to type and value;
(iv) a vessel (other than the Collateral Vessel or other Collateral) or any other asset owned by any member of the NCLC Group (other than the Borrower) may be sold,
provided
such sale is on a
willing seller willing buyer basis at or about market rate and at arm’s length subject always to the provisions of any loan documentation for the financing of such vessel or other asset;
(v) the Credit Parties may sell, lease or otherwise dispose of the Collateral Vessel or sell 100% of the Capital Stock of
the Borrower,
provided
that such sale is made at fair market value, the Total Allocable Commitment is permanently reduced to $0, and the Loans are repaid in full; and
(vi) Permitted Chartering Arrangements.
10.03
Dividends
. The Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Parent may pay Dividends to another member of the NCLC Group;
provided
that the
Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International, Ltd., NCL America Holdings, LLC or Arrasas Limited shall be received
promptly by the Parent directly or indirectly by way of Dividend;
(ii) the Parent 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 NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable
as a result of any member of the NCLC 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 NCLC Group; and
(iii) at any time following the listing of the ordinary Capital Stock of the Parent on an Approved Stock Exchange, the
Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on January 1, 2010 and ending on the date prior to such Dividend for which
financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to
Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided to the Facility Agent pursuant to Section 9.01 is less than 5.50:1.00.
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10.04
Advances, Investments and Loans
. The Parent will not, and will not permit any
other member of the NCLC Group to, purchase or acquire any margin stock (or other Equity Interests) or any other asset, or make any capital contribution to or other investment in any other Person (each of the foregoing an
“
Investment
” and, collectively, “
Investments
”), in each case either in a single transaction or in a series of transactions (whether related or not), except that the following shall be permitted:
(i) Investments on arm’s length terms;
(ii) Investments for its use in its ordinary course of business;
(iii) Investments the cost of which is less than or equal to its fair market value at the date of acquisition; and
(iv) Investments permitted by Section 10.02.
10.05
Transactions with Affiliates
. (a) The Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of such Person (each of the foregoing, an “
Affiliate Transaction
”) involving aggregate consideration in excess of $10,000,000, unless
such Affiliate Transaction is on terms that are not materially less favorable to the Parent or any Subsidiary of the Parent than those that could have been obtained in a comparable transaction by such Person with an unrelated Person.
(b) The provisions of Section 10.05(a) shall not apply to the following:
(i) transactions between or among the Parent and/or any Subsidiary of the Parent (or an entity that becomes a Subsidiary
of the Parent as a result of such transaction) and any merger, consolidation or amalgamation of the Parent or any Subsidiary of the Parent and any direct parent of the Parent, any Subsidiary of the Parent or, in the case of a Subsidiary of the
Parent, the Parent;
provided
that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent or such Subsidiary of the Parent, as the case may be, and such
merger, consolidation or amalgamation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
(ii) Dividends permitted by Section 10.03 and Investments permitted by Section 10.04;
(iii) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Parent or any Subsidiary
of the Parent, any direct or indirect parent of the Parent;
(iv) payments by the Parent or any Subsidiary of
the Parent to a Permitted Holder made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the board of directors of the Parent in good faith;
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(v) any agreement to pay, and the payment of, monitoring, management,
transaction, advisory or similar fees (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of (i) 1% of Consolidated EBITDA of the Parent and (ii) $9,000,000 plus reasonable out of pocket costs
and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (A)(1) above originally), plus (B) 2.0% of the value of transactions
with respect to which an Affiliate provides any transaction, advisory or other services, plus (C) so long as no Event of Default has occurred and is continuing, in the event of an initial public offering, the present value of all future amounts
payable pursuant to any agreement referred to in clause (A)(1) above in connection with the termination of such agreement with a Permitted Holder;
provided
that if any such payment pursuant to clause (C) is not permitted to be paid as a
result of an Event of Default, such payment shall accrue and may be payable when no Event of Default is continuing to the extent that no further Event of Default would result therefrom;
(vi) transactions in which the Parent or any Subsidiary of the Parent, as the case may be, delivers to the Facility Agent
a letter from an independent financial advisor stating that such transaction is fair to the Parent or any Subsidiary of the Parent, as the case may be, from a financial point of view or meets the requirements of Section 10.05(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by
a majority of the board of directors of the Parent in good faith;
(viii) any agreement as in effect as of the
Effective Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the
Effective Date) or any transaction contemplated thereby as determined in good faith by the Parent;
(ix)(A)
transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Agreement, which are fair to the Parent and its Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Parent, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Subsidiaries of the Parent entered into in the ordinary course of business and consistent with past practice or industry norm;
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(x) the issuance of Equity Interests (other than Disqualified Stock) of the
Parent to any Person;
(xi) the issuances of securities or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Parent or any direct or indirect parent of the Issuer or of a
Subsidiary of the Parent, as appropriate, in good faith;
(xii) any contribution to the capital of the Parent;
(xiii) transactions between the Parent or any Subsidiary of the Parent and any Person, a director of which is
also a director of the Parent or any Subsidiary of the Parent or any direct or indirect parent of the Parent;
provided
,
however
, that such director abstains from voting as a director of the Parent or any Subsidiary of the Parent or
such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xiv) pledges
of Equity Interests of Subsidiaries of the Parent (other than the Borrower);
(xv) the formation and
maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xvi) any employment agreements entered into by the Parent or any Subsidiary of the Parent in the ordinary course of business; and
(xvii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Parent
in an officer’s certificate) for the purpose of improving the consolidated tax efficiency of the Parent and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Agreement.
10.06
Free Liquidity
. The Parent will not permit the Free Liquidity to be less than $50,000,000 at any time.
10.07
Total Net Funded Debt to Total Capitalization
. The Parent will not permit the ratio of Total Net Funded Debt to Total
Capitalization to be greater than 0.70:1.00 at any time.
10.08
Collateral Maintenance
. The Borrower will not permit
the Appraised Value of the Collateral Vessel (such value, the “
Vessel Value
”) to be less than 125% of the sum of (x) the aggregate outstanding principal amount of Loans at such time and (y) the aggregate outstanding
principal amount of loans under the Existing Jewel Facility at such time;
provided
that, so long as any non-compliance in respect of this Section 10.08 is not caused by a voluntary Collateral Disposition, such non-compliance shall not
constitute a Default or an Event of Default so long as within 10 Business Days of the occurrence of such default, the Borrower shall either (i) post additional collateral reasonably satisfactory to the Required Lenders in favor of the
Collateral Agent (it being understood that cash collateral comprised of Dollars is satisfactory and
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that it shall be valued at par), pursuant to security documentation reasonably satisfactory in form and substance to the Collateral Agent and the Joint Lead Arrangers, in an aggregate amount
sufficient to cure such non-compliance (and shall at all times during such period and prior to satisfactory completion thereof, be diligently carrying out such actions) or (ii) repay Loans in an amount sufficient to cure such non-compliance;
provided
,
further
, that, subject to the last sentence in Section 9.01(c), the covenant in this Section 10.08 shall be tested no more than once per calendar year beginning with 2011 in the absence of the occurrence of an Event
of Default which is continuing.
10.09
Consolidated EBITDA to Consolidated Debt Service
. The Parent will not permit the
ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group at the end of any fiscal quarter, computed for the period of the four consecutive fiscal quarters ending as at the end of the relevant fiscal quarter, to be less than
1.25:1.00 unless the Free Liquidity of the NCLC Group at all times during such period of four consecutive fiscal quarters ending as at the end of such fiscal quarter was equal to or greater than $100,000,000.
10.10
Business; Change of Name
. The Parent will not, and will not permit any of its Subsidiaries to, change its name, change its
address as indicated on Schedule 14.03A to an address outside the State of Florida, or make or threaten to make any substantial change in its business as presently conducted or cease to perform its current business activities or carry on any other
business which is substantial in relation to its business as presently conducted if doing so would imperil the security created by any of the Security Documents or affect the ability of the Parent or its Subsidiaries to duly perform its obligations
under any Credit Document to which it is or may be a party from time to time (it being understood that name changes and changes of address to an address outside the State of Florida shall be permitted so long as new, relevant Security Documents are
executed and delivered (and if necessary, recorded) in a form reasonably satisfactory to the Collateral Agent), in each case in the reasonable opinion of the Facility Agent;
provided
that any new leisure or hospitality venture embarked upon
by any member of the NCLC Group (other than the Parent) shall not constitute a substantial change in its business.
10.11
Subordination of Indebtedness
. The Parent shall procure that any and all of its Indebtedness with any other Credit Party and/or any shareholder of the Parent is at all times fully subordinated to the Credit Document Obligations. The Parent
shall not make or permit to be made any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any shareholder of the Parent. Upon the occurrence of an Event
of Default, the Parent shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing Indebtedness with any other Credit Party.
10.12
Activities of Borrower, etc
. The Parent will not permit the Borrower to, and the Borrower will not:
(i) issue or enter into any guarantee or indemnity or otherwise become directly or contingently liable for the obligations
of any other Person, other than (x) in the ordinary course of its business as owner of the Collateral Vessel and (y) in respect of the Senior Loan Agreements;
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(ii) incur any Indebtedness other than (x) under the Credit Documents
and the Senior Loan Agreements, and (y) in the ordinary course of its business as owner of the Collateral Vessel; and
(iii) engage in any business or own any significant assets or have any material liabilities other than (i) its ownership of the Collateral Vessel and (ii) those liabilities which it is
responsible for under this Agreement and the other Credit Documents to which it is a party and the Senior Loan Agreements to which it is a party,
provided
that the Borrower may also engage in those activities that are incidental to
(x) the maintenance of its existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
10.13
Material Amendments or Modifications of Construction Contracts
. The Parent will not, and will not permit any of its Subsidiaries to, make any material amendments, modifications or changes to
any term or provision of either Construction Contract that would amend, modify or change (i) the purpose of the relevant New Vessel or (ii) the Initial Construction Price under such Construction Contract in excess of 7.5% in the aggregate,
in each case unless such amendment, modification or change is approved in advance by the Facility Agent and the Hermes Agent, and the same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
10.14
No Place of Business
. None of the Credit Parties shall establish a place of business in the United Kingdom or
the United States of America, with the exception of those places of business already in existence on the Effective Date, unless prompt notice thereof is given to the Facility Agent and the requirements set forth in Section 9.10 have been
satisfied.
SECTION 11.
Events of Default
. Upon the occurrence of any of the following specified events (each an
“
Event of Default
”):
11.01
Payments
. The Borrower or any other Credit Party does not pay on the due
date any amount of principal or interest on any Loan (
provided
,
however
, that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank or banks through whom the relevant funds are being
transmitted no Event of Default shall occur for the purposes of this Section 11.01 until the expiry of three Business Days following the date on which such payment is due) or, within three days of the due date any other amount, payable by it
under any Credit Document to which it may at any time be a party, at the place and in the currency in which it is expressed to be payable; or
11.02
Representations, etc
. Any representation, warranty or statement made or repeated in, or in connection with, any Credit Document or in any accounts, certificate, statement or opinion delivered
by or on behalf of any Credit Party thereunder or in connection therewith is materially incorrect when made or would, if repeated at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct; or
11.03
Covenants
. Any Credit Party shall (i) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 9.01(h), Section 9.06, Section 9.11 or Section 10 or (ii) default in the due performance or observance by it of any other
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term, covenant or agreement contained in this Agreement or any other Credit Document and, in the case of this clause (ii), such default shall continue unremedied for a period of 30 days after
written notice to the Borrower by the Facility Agent or any of the Lenders; or
11.04
Default Under Other Agreements
.
(a) Any event of default occurs under any financial contract or financial document relating to any Indebtedness of any member of the NCLC Group;
(b) Any such Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise;
(c) Any Lien over any assets of any member of the NCLC Group becomes enforceable; or
(d) Any other Indebtedness of any member of the NCLC Group is not paid when due or is or becomes capable of being declared due
prematurely by reason of default or any security for the same becomes enforceable by reason of default,
provided
that:
(i) it shall not be a Default or Event of Default under this Section 11.04 unless the principal amount of the relevant
Indebtedness as described in preceding clauses (a) through (d), inclusive, exceeds $15,000,000;
(ii) no Event of Default
will arise under clauses (a), (c) and/or (d) until the earlier of (x) 30 days following the occurrence of the related event of default, Lien becoming enforceable or Indebtedness becoming capable of being declared due prematurely, as
the case may be, and (y) the acceleration of the relevant Indebtedness or the enforcement of the relevant Lien; and
(iii) if at any time hereafter the Parent or any other member of the NCLC Group agrees to the incorporation of a cross default provision
into any financial contract or financial document relating to any Indebtedness that is more onerous than this Section 11.04, then the Parent shall immediately notify the Facility Agent and that cross default provision shall be deemed to apply
to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the term of that financial contract or financial document; or
11.05
Bankruptcy, etc
. (a) Other than as expressly permitted in Section 10, any order is made or an effective resolution
passed or other action taken for the suspension of payments or dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of the NCLC Group; or
(b) Any member of the NCLC Group shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor
thereto (the “
Bankruptcy Code
”); or an involuntary case is commenced against any member of the NCLC Group, and the petition is not dismissed within
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45 days after the filing thereof,
provided
,
however
, that during the pendency of such period, each Lender shall be relieved of its obligation to extend credit hereunder; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of any member of the NCLC Group, to operate all or any substantial portion of the business of any member of the NCLC Group,
or any member of the NCLC Group commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect
relating to any member of the NCLC Group, or there is commenced against any member of the NCLC Group any such proceeding which remains undismissed for a period of 45 days after the filing thereof, or any member of the NCLC Group is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or any member of the NCLC Group makes a general assignment for the benefit of creditors; or any Company action is taken by any member of
the NCLC Group for the purpose of effecting any of the foregoing; or
(c) A liquidator (subject to Section 11.05(e)),
trustee, administrator, receiver, manager or similar officer is appointed in respect of any member of the NCLC Group or in respect of all or any substantial part of the assets of any member of the NCLC Group and in any such case such appointment is
not withdrawn within 30 days (in this Section 11.05, the “
Grace Period
”) unless the Facility Agent considers in its sole discretion that the interest of the Lenders and/or the Agents might reasonably be expected to be adversely
affected in which event the Grace Period shall not apply; or
(d) Any member of the NCLC Group becomes or is declared
insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any applicable law; or
(e) Anything analogous to or having a substantially similar effect to any of the events specified in this Section 11.05 shall have occurred under the laws of any applicable jurisdiction (subject to
the analogous grace periods set forth herein); or
11.06
Total Loss
. An Event of Loss shall occur resulting in the
actual or constructive total loss of the Collateral Vessel or the agreed or compromised total loss of the Collateral Vessel and the proceeds of the insurance in respect thereof shall not have been received within 150 days of the event giving rise to
such Event of Loss; or
11.07
Security Documents
. At any time after the execution and delivery thereof, any of the
Security Documents shall cease to be in full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the material Collateral), in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except in connection with Permitted Liens), and subject to no
other Liens (except Permitted Liens), or any “event of default” (as defined in the Vessel Mortgage) shall occur in respect of the Vessel Mortgage; or
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11.08
Guaranties
. (a) The Parent Guaranty, or any provision thereof, shall cease
to be in full force or effect as to the Parent, or the Parent (or any Person acting by or on behalf of the Parent) shall deny or disaffirm the Parent’s obligations under the Parent Guaranty; or
(b) After the execution and delivery thereof, the Hermes Cover, or any material provision thereof, shall cease to be in full force or
effect, or Hermes (or any Person acting by or on behalf of the Parent or the Hermes Agent) shall deny or disaffirm Hermes’ obligations under the Hermes Cover; or
11.09
Judgments
. Any distress, execution, attachment or other process affects the whole or any substantial part of the assets of any member of the NCLC Group and remains undischarged for a period
of 21 days or any uninsured judgment in excess of $15,000,000 following final appeal remains unsatisfied for a period of 30 days in the case of a judgment made in the United States and otherwise for a period of 60 days; or
11.10
Cessation of Business
. Subject to Section 10.02, any member of the NCLC Group shall cease to carry on all or a
substantial part of its business; or
11.11
Revocation of Consents
. Any authorization, approval, consent, license,
exemption, filing, registration or notarization or other requirement necessary to enable any Credit Party to comply with any of its obligations under any of the Credit Documents to which it is a party shall have been materially adversely modified,
revoked or withheld or shall not remain in full force and effect and within 90 days of the date of its occurrence such event is not remedied to the satisfaction of the Required Lenders and the Required Lenders consider in their sole discretion that
such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Agents and the Lenders or any of them; provided that the Borrower shall not be entitled to the aforesaid 90 day period if the
modification, revocation or withholding of the authorization, approval or consent is due to an act or omission of any Credit Party and the Required Lenders are satisfied in their sole discretion that the interests of the Agents or the Lenders might
reasonably be expected to be materially adversely affected; or
11.12
Unlawfulness
. At any time it is unlawful or
impossible for:
(i) any Credit Party to perform any of its obligations under any Credit Document to which it
is a party; or
(ii) the Agents or the Lenders, as applicable, to exercise any of their rights under any of the
Credit Documents;
provided
that no Event of Default shall be deemed to have occurred (x) (except where the unlawfulness or
impossibility adversely affects any Credit Party’s payment obligations under this Agreement and/or the other Credit Documents (the determination of which shall be in the Facility Agent’s sole discretion) in which case the following
provisions of this Section 11.12 shall not apply) where the unlawfulness or impossibility prevents any Credit Party from performing its obligations (other than its payment obligations under this Agreement and the other Credit Documents) and is
cured within a period of 21 days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Credit Party, within the aforesaid period, performs its obligation(s), and (y) where the Facility Agent and/or the
Lenders, as applicable, could, in its or their sole discretion, mitigate the consequences of unlawfulness or impossibility in the manner described in Section 2.10(a) (it being understood that the costs of mitigation shall be determined in
accordance with Section 2.10(a)); or
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11.13
Insurances
. Borrower shall have failed to insure the Collateral Vessel in the
manner specified in this Agreement or failed to renew the Required Insurance at least 10 Business Days prior to the date of expiry thereof and, if requested by the Facility Agent, produce prompt confirmation of such renewal to the Facility Agent; or
11.14
Disposals
. The Borrower or any other member of the NCLC Group shall have concealed, removed, or permitted to be
concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other creditor; or
11.15
Government Intervention
. The authority of any member of the NCLC Group in the conduct of its business shall be wholly or substantially curtailed by any seizure or intervention by or on behalf
of any authority and within 90 days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Facility Agent reasonably considers that the relevant occurrence is or might be expected to become materially
prejudicial to the interests, rights or position of the Agents and/or the Lenders; provided that the Borrower shall not be entitled to the aforesaid 90 day period if the seizure or intervention executed by any authority is due to an act or omission
of any member of the NCLC Group and the Facility Agent is satisfied, in its sole discretion, that the interests of the Agents and/or the Lenders might reasonably be expected to be materially adversely affected; or
11.16
Change of Control
. A Change of Control shall occur; or
11.17
Material Adverse Change
. Any event shall occur which results in a Material Adverse Effect; or
11.18
Repudiation of Construction Contract or other Material Documents
. Any party to the Construction Contract, any Credit
Document or any other material documents related to the Credit Document Obligations hereunder shall repudiate the Construction Contract, such Credit Document or such material document in any way;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Facility Agent, upon the
written request of the Required Lenders and after having informed the Hermes Agent of such written request, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of any Agent or, any
Lender to enforce its claims against any Credit Party (
provided
that, if an Event of Default specified in Section 11.05 shall occur, the result which would occur upon the giving of written notice by the Facility Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitment terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without
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any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all Credit Document Obligations owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; and (iii) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents.
SECTION 12.
Agency and Security Trustee Provisions
.
12.01
Appointment and Declaration of Trust
. (a) The Lenders hereby designate KfW IPEX-Bank GmbH, as Facility
Agent (for purposes of this Section 12, the term “
Facility Agent
” shall include KfW IPEX-Bank GmbH (and/or any of its Affiliates) in its capacity as Collateral Agent under the Security Documents) to act as specified herein and
in the other Credit Documents. The Lenders hereby further designate Nordea Bank Norge ASA, as Documentation Agent, to act as specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes the Agents to take such action
on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agents by the terms hereof and thereof and such other powers as are reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through its respective officers, directors,
agents, employees or affiliates and, may transfer from time to time any or all of its rights, duties and obligations hereunder and under the relevant Credit Documents (in accordance with the terms thereof) to any of its banking affiliates.
(b) KfW IPEX-Bank GmbH in its capacity as Collateral Agent pursuant to the Security Documents declares that it shall hold the
Collateral in trust for the Secured Creditors in accordance with the terms contained in each Intercreditor Agreement, as applicable. The Collateral Agent shall have the right to delegate a co-agent or sub-agent from time to time to perform and
benefit from any or all rights, duties and obligations hereunder and under the relevant Security Documents (in accordance with the terms thereof and the Security Trust Deed) and, in the event that any such duties or obligations are so delegated, the
Collateral Agent is hereby authorized to enter into additional Security Documents or amendments to the then existing Security Documents to the extent it deems necessary or advisable to implement such delegation and, in connection therewith, the
Parent will, or will cause the relevant Subsidiary to, use its commercially reasonable efforts to promptly deliver any opinion of counsel that the Facility Agent may reasonably require to the reasonable satisfaction of the Facility Agent.
(c) The Lenders hereby designate Commerzbank Aktiengesellschaft, as Hermes Agent, which Agent shall be responsible for any
and all communication, information and negotiation required with Hermes in relation to the Hermes Cover. All notices and other communications provided to the Hermes Agent shall be mailed, telexed, telecopied, delivered or electronic mailed to the
Notice Office of the Hermes Agent.
12.02
Nature of Duties
. The Agents shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Security Documents. None of the Agents nor any of their respective officers, directors, agents, employees or affiliates shall be
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liable for any action taken or omitted by it or them hereunder, under any other Credit Document, under the Hermes Cover or in connection herewith or therewith, unless caused by such Person’s
gross negligence or willful misconduct (any such liability limited to the applicable Agent to whom such Person relates). The duties of each of the Agents shall be mechanical and administrative in nature; none of the Agents shall have by reason of
this Agreement or any other Credit Document any fiduciary relationship in respect of any Lender; and nothing in this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agents
any obligations in respect of this Agreement, any other Credit Document or the Hermes Cover except as expressly set forth herein or therein.
12.03
Lack of Reliance on the Agents
. Independently and without reliance upon the Agents, each Lender, to the extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Credit Parties in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith, (ii) its own appraisal of
the creditworthiness of the Credit Parties and (iii) its own appraisal of the Hermes Cover and, except as expressly provided in this Agreement, none of the Agents shall have any duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. None of the Agents shall be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement, any other Credit Document, the Hermes Cover or the financial condition of the Credit Parties or any of them or be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement, any other Credit Document, the Hermes Cover, or the financial condition of the Credit Parties or any of them or the existence or possible existence of any Default or Event of Default.
12.04
Certain Rights of the Agents
. If any of the Agents shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this Agreement, any other Credit Document or the Hermes Cover, the Agents shall be entitled to refrain from such act or taking such action unless and until the Agents shall
have received instructions from the Required Lenders; and the Agents shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Agents as a
result of any of the Agents acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.
12.05
Reliance
. Each of the Agents shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the applicable Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this
Agreement, any other Credit Document, the Hermes Cover and its duties hereunder and thereunder, upon advice of counsel selected by the Facility Agent.
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12.06
Indemnification
. To the extent any of the Agents is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify the applicable Agents, in proportion to their respective “percentages” as used in determining the Required Lenders (without regard to the existence of any Defaulting
Lenders), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such
Agents in performing their respective duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document;
provided
that no Lender shall be liable to an Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct.
12.07
The Agents in their Individual Capacities
. With respect to its obligation to make Loans under this Agreement, each of the
Agents shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lenders,” “Secured
Creditors”, “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each of the Agents in their respective individual capacity. Each of the Agents may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any Credit Party or any Affiliate of any Credit Party as if it were not performing the duties specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
12.08
Resignation by an Agent
. (a) Any Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business
Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon notice of resignation by an Agent pursuant to clause (a) above, the Required Lenders shall appoint a successor Agent
hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower;
provided
that the Borrower’s consent shall not be required pursuant to this clause (b) if an Event of Default exists at
the time of appointment of a successor Agent.
(c) If a successor Agent shall not have been so appointed within the 15
Business Day period referenced in clause (a) above, the applicable Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and surplus of
not less than $500,000,000 as successor Agent who shall serve as the applicable Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Agent as provided above;
provided
that the Borrower’s consent shall
not be required pursuant to this clause (c) if an Event of Default exists at the time of appointment of a successor Agent.
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(d) If no successor Agent has been appointed pursuant to clause (b) or (c) above
by the 25th Business Day after the date such notice of resignation was given by the applicable Agent, the applicable Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent
hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Agent as provided above.
12.09
The Joint Lead Arrangers
. Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, each of Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank
ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA, is hereby appointed as a Joint Lead Arranger by the Lenders to act as specified herein and in the other Credit Documents. Each of the Joint Lead Arrangers in their respective
capacities as such shall have only the limited powers, duties, responsibilities and liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby as are set forth herein or therein; it
being understood and agreed that the Joint Lead Arrangers shall be entitled to all indemnification and reimbursement rights in favor of any of the Agents as provided for under Sections 12.06 and 14.01. Without limitation of the foregoing, none of
the Joint Lead Arrangers shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.
12.10
Impaired Agent
. (a) If, at any time, any Agent becomes an Impaired Agent, a Credit Party or a Lender which is required to make a payment under the Credit Documents to such Agent in
accordance with Section 4.03 may instead either pay that amount directly to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of
“Acceptable Bank” and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Credit Party or the Lender making the payment and designated as a trust account for the benefit of the party or parties
hereto beneficially entitled to that payment under the Credit Documents. In each case such payments must be made on the due date for payment under the Credit Documents.
(b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account
pro rata
to their respective entitlements.
(c) A party to this Agreement which has made a payment in accordance with this Section 12.10 shall be discharged of the
relevant payment obligation under the Credit Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
(d) Promptly upon the appointment of a successor Agent in accordance with Section 12.11, each party to this Agreement which has made a payment to a trust account in accordance with this
Section 12.10 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Section 2.04
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12.11
Replacement of an Agent
. (a) After consultation with the Parent, the
Required Lenders may, by giving 30 days’ notice to an Agent (or, at any time such Agent is an Impaired Agent, by giving any shorter notice determined by the Required Lenders) replace such Agent by appointing a successor Agent (subject to
Section 12.08(b) and (c)).
(b) The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the
expense of the Borrower) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Credit Documents.
(c) The appointment of the successor Agent shall take effect on the date specified in the notice from the Required Lenders to
the retiring Agent. As from such date, the retiring Agent shall be discharged from any further obligation in respect of the Credit Documents but shall remain entitled to the benefit of this Section 12.11 (and any agency fees for the account of
the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d) Any successor Agent and each of the
other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party to this Agreement.
12.12
Resignation by the Hermes Agent
. (a) The Hermes Agent may resign from the performance of all its functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the appointment of a successor Hermes Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Hermes
Agent, the Required Lenders shall appoint a successor Hermes Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower; provided that the Borrower’s consent shall not be required
pursuant to this clause (b) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(c) If
a successor Hermes Agent shall not have been so appointed within such 15 Business Day period, the Hermes Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust
company with capital and surplus of not less than $500,000,000 as successor Hermes Agent who shall serve as Hermes Agent hereunder or thereunder until such time, if any, as the Lenders appoint a successor Hermes Agent as provided above; provided
that the Borrower’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Hermes Agent.
(d) If no successor Hermes Agent has been appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such notice of resignation was given by the Hermes Agent, the
Hermes Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Hermes Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Hermes Agent as provided above.
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SECTION 13.
Benefit of Agreement
. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of the parties hereto, subject to the provisions of this Section 13.
13.01
Assignments and Transfers by the Lenders
. (a) Subject to Section 13.06 and 13.07, any Lender (or any Lender together with one or more other Lenders, each an “
Existing
Lender
”) may:
(i) with the consent of the Hermes Agent and the written consent of the Federal
Republic of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts (
Ergänzende Bestimmungen für
Forderungsabtretungen AB (FAB))
, assign any of its rights or transfer by novation any of its rights and obligations under this Agreement or any Credit Document (including, without limitation, all of the Commitments and outstanding Loans, or if
less than all, a portion equal to at least $10,000,000 in the aggregate for such Lender’s rights and obligations), to (x) its parent company and/or any Affiliate of such assigning or transferring Lender which is at least 50% owned
(directly or indirectly) by such Lender or its parent company or (y) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such
Lender or by an Affiliate of such investment advisor, or
(ii) with the consent of the Hermes Agent, the
written consent of the Federal Republic of Germany, where required according to the applicable General Terms and Conditions (
Allgemeine Bedingungen
) and the supplementary provisions relating to the assignment of Guaranteed Amounts
(
Ergänzende Bestimmungen für Forderungsabtretungen AB (FAB))
and consent of the Borrower (which consent, in the case of the Borrower (x) shall not be unreasonably withheld or delayed, (y) shall not be required if a Default
or Event of Default shall have occurred and be continuing at such time and (z) shall be deemed to have been given ten Business Days after the Existing Lender has requested it in writing unless consent is expressly refused by the Borrower within
that time) assign any of its rights in or transfer by novation any of its rights in and obligations under all of its Commitments and outstanding Loans, or if less than all, a portion equal to at least $10,000,000 in the aggregate for such Existing
Lender’s rights and obligations, hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or
by an Affiliate of such investment advisor as a single Eligible Transferee),
each of which assignees or transferees shall
become a party to this Agreement as a Lender by execution of (I) an Assignment Agreement (in the case of assignments) and (II) a Transfer Certificate (in the case of transfers under Section 13.06);
provided
that (x) at such
time, Schedule 1.01(a) shall be deemed modified to reflect the Commitments and/or outstanding Loans, as the case may be , of such New Lender and of the Existing Lenders and (y) the consent of the Facility Agent shall be required in connection
with any assignment or transfer pursuant to preceding clause (ii) (which consent, in each case, shall not be unreasonably withheld or delayed); and
provided
,
further
, that at no time shall a Lender assign or transfer its rights or
obligations under this Agreement to a hedge fund, private equity fund, insurance company or other similar or related financing institution that is not in the primary business of accepting cash deposits from, and making loans to, the public.
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(b) If (x) a Lender assigns or transfers any of its rights or obligations under the
Credit Documents or changes its Facility Office and (y) as a result of circumstances existing at the date the assignment, transfer or change occurs, a Credit Party would be obliged to make a payment to the New Lender or Lender acting through
its new Facility Office under Sections 2.08, 2.09 or 4.04, then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under that section to the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment, transfer or change had not occurred. This Section 13.01(b) shall not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the
Credit Agreement.
(c) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for
the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on
which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
(d) Each assignment and/or transfer shall be made by such Existing Lender on a
pro
rata
basis with respect to such Existing
Lender’s Commitments under this Agreement and the Other Term Loan Facility, and no assignment and/or transfer of an Existing Lender’s rights and obligations hereunder may be made unless such Existing Lender, simultaneously with such
assignment and/or transfer, assigns all of its parallel rights and obligations under the Other Term Loan Facility.
13.02
Assignment or Transfer Fee
. Unless the Facility Agent otherwise agrees and excluding an assignment or transfer (i) to an Affiliate of a Lender, (ii) made in connection with primary syndication of this Agreement or (iii) as set
forth in Section 13.03, each New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $3,500.
13.03
Assignments and Transfers to Hermes
. Nothing in this Agreement shall prevent or prohibit any Lender from assigning its
rights or transferring its rights and obligations hereunder to Hermes without the consent of the Borrower and without being required to pay the non-refundable assignment fee of $3,500 referred to in Section 13.02 above.
13.04
Limitation of Responsibility to Existing Lenders
. (a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity,
effectiveness, adequacy or enforceability of the Credit Documents, the Security Documents or any other documents;
(ii) the financial condition of any Credit Party;
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(iii) the performance and observance by any Credit Party of its obligations
under the Credit Documents or any other documents; or
(iv) the accuracy of any statements (whether written or
oral) made in or in connection with any Credit Document or any other document,
and any representations or warranties implied
by law are excluded.
(b) Each New Lender confirms to the Existing Lender, the other Lender Creditors and the Secured
Creditors that it (1) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Credit Party and its related entities in connection with its participation in this
Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Lender Creditor in connection with any Credit Document or any Lien (or any other security interest) created pursuant to the Security
Documents and (2) will continue to make its own independent appraisal of the creditworthiness of each Credit Party and its related entities whilst any amount is or may be outstanding under the Credit Documents or any Commitment is in force.
(c) Nothing in any Credit Document obliges an Existing Lender to:
(i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred
under this Section 13; or
(ii) support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Credit Party of its obligations under the Credit Documents or otherwise.
13.05
[Intentionally Omitted]
.
13.06
Procedure and Conditions for Transfer
. (a) Subject to Section 13.01, a
transfer is effected in accordance with Section 13.06(c) when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
Section 13.06(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
(c) On the date of the transfer:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Credit Documents and in respect of the Security Documents each of
the Credit Parties and the Existing Lender shall be released from further obligations towards one another under the Credit Documents and in respect of the Security Documents and their respective rights against one another under the Credit Documents
and in respect of the Security Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
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(ii) each of the Credit Parties and the New Lender shall assume obligations
towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Credit Party or other member of the NCLC Group and the New Lender have assumed and/or acquired the same in
place of that Credit Party and the Existing Lender;
(iii) the Facility Agent, the Collateral Agent, the Hermes
Agent the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Security Documents as they would have acquired and assumed had the New Lender been an original Lender
with the rights, and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Collateral Agent, the Hermes Agent and the Existing Lender shall each be released from further obligations to each
other under the Credit Documents, it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iv) the New Lender shall become a party to this Agreement as a “Lender”; and
(v) The New Lender shall enter into the documentation required for it to accede as a party to the ECF Intercreditor
Agreements.
13.07
Procedure and Conditions for Assignment
. (a) Subject to Section 13.01, an assignment may
be effected in accordance with Section 13.07(c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
Section 13.07(b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Assignment Agreement.
(b) The Facility Agent shall only be obliged to execute an
Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to the
assignment to such New Lender.
(c) On the date of the assignment:
(i) the Existing Lender will assign absolutely to the New Lender its rights under the Credit Documents and in respect of
any Lien (or any other security interest) created pursuant to the Security Documents expressed to be the subject of the assignment in the Assignment Agreement;
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(ii) the Existing Lender will be released from the obligations (the
“
Relevant Obligations
”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of any Lien (or any other security interest) created pursuant to the
Security Documents), it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 2.08, 2.09, 4.04, 14.01 and 14.05) shall survive as to such Existing Lender;
(iii) the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the
Relevant Obligations; and
(iv) The New Lender enters into the documentation required for it to accede as a
party to any ECF Intercreditor Agreement.
13.08
Copy of Transfer Certificate or Assignment Agreement to Parent
. The
Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Parent a copy of that Transfer Certificate or Assignment Agreement.
13.09
Security over Lenders’ Rights
. In addition to the other rights provided to Lenders under this Section 13, each
Lender may without consulting with or obtaining consent from any Credit Party, at any time charge, assign or otherwise create a Lien (or any other security interest) or declare a trust in or over (whether by way of collateral or otherwise) all or
any of its rights under any Credit Document to secure obligations of that Lender including, without limitation:
(i) any charge, assignment or other Lien (or any other security interest) or trust to secure obligations to a federal
reserve or central bank; and
(ii) in the case of any Lender which is a fund, any charge, assignment or other
Lien (or any other security interest) granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Lien (or any other security interest) or trust shall:
(i) release a Lender from any of its obligations under the Credit Documents or substitute the beneficiary of the relevant
charge, assignment or other Lien (or any other security interest) or trust for the Lender as a party to any of the Credit Documents; or
(ii) require any payments to be made by a Credit Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Credit Documents.
13.10
Assignment by a Credit Party
. No Credit Party may assign any of its rights or transfer by novation any of its
rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Hermes Agent and the Lenders.
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13.11
Lender Participations
. (a) Although any Lender may grant participations in
its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer by novation its rights and obligations or assign its rights under all or any portion of its Commitments hereunder except as provided
in Sections 2.11 and 13.01) and the participant shall not constitute a “Lender” hereunder; and
(b) no Lender shall
grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled
maturity of any Loan in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase
in interest rates and (n) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or
increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a
change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (y) consent to
the assignment by the Borrower of any of its rights, or transfer by the Borrower of any of its rights and obligations, under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as
expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit
Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation.
13.12
Increased Costs
. To the extent
that a transfer of all or any portion of a Lender’s Commitments and related outstanding Credit Document Obligations pursuant to Section 2.11 or Section 13.01 would, at the time of such assignment, result in increased costs under
Section 2.08, 2.09 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the date of the respective assignment).
SECTION 14.
Miscellaneous
.
14.01
Payment of Expenses, etc
. The Borrower agrees that it shall: whether or not the
transactions herein contemplated are consummated, (i) pay all reasonable documented out-of-pocket costs and expenses of each of the Agents (including, without limitation, the reasonable documented fees and disbursements of White & Case
LLP, Bahamian counsel, Bermudian counsel, Isle of Man counsel other counsel to the Facility Agent and the Joint Lead Arrangers and local counsel) in connection with the preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, and in connection with their respective syndication efforts with respect to this Agreement; (ii) pay all
documented out-of-pocket costs and expenses of each of the Agents and each of the Lenders in
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connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein (including, without limitation, the fees and
disbursements of counsel (excluding in-house counsel) for each of the Agents and for each of the Lenders); (iii) pay and hold the Facility Agent and each of the Lenders harmless from and against any and all present and future stamp,
documentary, transfer, sales and use, value added, excise and other similar taxes with respect to the foregoing matters, the performance of any obligation under this Agreement or any Credit Document or any payment thereunder, and save the Facility
Agent and save each of the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to the Facility Agent or such Lender) to pay such taxes; and
(iv) other than in respect of a wrongful failure by any Lender to fund its Commitments as required by this Agreement, indemnify the Agents and each Lender, and each of their respective officers, directors, trustees, employees, representatives
and agents from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not any of the Agents or any Lender is a party thereto) related to the entering into and/or performance of this Agreement or any other Credit Document or the proceeds of any Loans hereunder or the consummation of any
transactions contemplated herein, or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials on the
Collateral Vessel or in the air, surface water or groundwater or on the surface or subsurface of any property at any time owned or operated by the Borrower, the generation, storage, transportation, handling, disposal or Environmental Release of
Hazardous Materials at any location, whether or not owned or operated by the Borrower, the non-compliance of the Collateral Vessel or property with foreign, federal, state and local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to the Collateral Vessel or property, or any Environmental Claim asserted against the Borrower or the Collateral Vessel or property at any time owned or operated by the Borrower, including, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages, penalties, actions, judgments, suits, costs,
disbursements or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified or by reason of a failure by the Person to be indemnified to fund its Commitments as required by this
Agreement). To the extent that the undertaking to indemnify, pay or hold harmless each of the Agents or any Lender set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall make the
maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
14.02
Right of Set-off
. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to the Parent or any Subsidiary of the Parent or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special)
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and any other Indebtedness at any time held or owing by such Lender (including, without limitation, by branches and agencies of such Lender wherever located) to or for the credit or the account
of the Parent or any Subsidiary of the Parent but in any event excluding assets held in trust for any such Person against and on account of the Credit Document Obligations and liabilities of the Parent or such Subsidiary of the Parent, as
applicable, to such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Credit Document Obligations purchased by such Lender pursuant to Section 14.05(b), and all other claims
of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not such Lender shall have made any demand hereunder and although said Credit Document Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured. Each Lender upon the exercise of its rights to set-off pursuant to this Section 14.02 shall give notice thereof to the Facility Agent.
14.03
Notices
. Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be
in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic mailed: if to any Credit Party, at the address specified on
Schedule 14.03A; if to any Lender, at its address specified opposite its name on Schedule 14.03B; and if to the Facility Agent or the Hermes Agent, at its Notice Office; or, as to any other Credit Party, at such other address as shall be designated
by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Parent, the Borrower and the Facility Agent;
provided
that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Facility Agent, the Hermes Agent, the Lenders, the Borrower and the Parent (x) agree that they shall notify each other in writing of their
electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) they shall notify each other of any change to their address or any other such information supplied by them. All
such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day
after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the
Facility Agent or the Hermes Agent shall not be effective until received by the Facility Agent or the Hermes Agent (as the case may be), or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender, the Borrower or the Parent to the Facility Agent or the Hermes Agent, only if it is addressed in such a manner as the Facility Agent shall specify for this purpose. A copy of any notice to the
Facility Agent shall be delivered to the Hermes Agent at its Notice Office. If an Agent is an Impaired Agent the parties to this Agreement may, instead of communicating with each other through such Agent, communicate with each other directly and
(while such Agent is an Impaired Agent) all the provisions of the Credit Documents which require communications to be made or notices to be given to or by such Agent shall be varied so that communications may be made and notices given to or by
the relevant parties to this Agreement directly. This provision shall not operate after a replacement Agent has been appointed.
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14.04
No Waiver; Remedies Cumulative
. No failure or delay on the part of an Agent or
any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and an Agent or any Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which an Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of an Agent or any Lender to any other or further action in any circumstances without notice or
demand.
14.05
Payments Pro Rata
. (a) Except as otherwise provided in this Agreement, the Facility Agent agrees
that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Credit Document Obligations hereunder, it shall distribute such payment to the Lenders (other than any Lender that has consented in writing to waive
its
pro
rata
share of any such payment)
pro rata
based upon their respective shares, if any, of the Credit Document Obligations with respect to which such payment was received.
(b) Other than in connection with assignments and participations (which are governed by Section 13), each of the Lenders agrees
that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Commitment Commission, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion
than the total of such Credit Document Obligation then owed and due to such Lender bears to the total of such Credit Document Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Credit Document Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation
by all the Lenders in such amount;
provided
that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding Sections
14.05(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
14.06
Calculations; Computations
. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made
and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by the Parent to the
Lenders). In addition, all computations determining compliance with the financial covenants set forth in Sections 10.06 through 10.09, inclusive, shall utilize accounting principles and policies
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in conformity with those used to prepare the historical financial statements delivered to the Lenders for the fiscal year of the Parent ended December 31, 2009 (with the foregoing generally
accepted accounting principles, subject to the preceding proviso, herein called “
GAAP
”). Unless otherwise noted, all references in this Agreement to “generally accepted accounting principles” shall mean generally accepted
accounting principles as in effect in the United States.
(b) All computations of interest and Commitment Commission hereunder
shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Commitment Commission are payable.
14.07
GOVERNING LAW; EXCLUSIVE JURISDICTION OF ENGLISH COURTS; SERVICE OF PROCESS
. (a) THIS AGREEMENT AND ANY
NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH IT ARE GOVERNED BY ENGLISH LAW.
(b) THE COURTS OF
ENGLAND HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING A DISPUTE RELATING TO THE EXISTENCE, VALIDITY OR TERMINATION OF THIS AGREEMENT OR ANY NON-CONTRACTUAL OBLIGATION ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT) (A “
DISPUTE
”)
.
THE PARTIES HERETO AGREE THAT THE COURTS OF ENGLAND ARE THE MOST APPROPRIATE AND CONVENIENT COURTS TO SETTLE DISPUTES AND ACCORDINGLY NO PARTY HERETO WILL ARGUE TO THE
CONTRARY. THIS SECTION 14.07 IS FOR THE BENEFIT OF THE LENDERS, AGENTS AND SECURED CREDITORS. AS A RESULT, NO SUCH PARTY SHALL BE PREVENTED FROM TAKING PROCEEDINGS RELATING TO A DISPUTE IN ANY OTHER COURTS WITH JURISDICTION. TO THE EXTENT
ALLOWED BY LAW, THE LENDERS, AGENTS AND SECURED CREDITORS MAY TAKE CONCURRENT PROCEEDINGS IN ANY NUMBER OF JURISDICTIONS.
(c) WITHOUT PREJUDICE TO ANY OTHER MODE OF SERVICE ALLOWED UNDER ANY RELEVANT LAW, EACH CREDIT PARTY (OTHER THAN A CREDIT PARTY
INCORPORATED IN ENGLAND AND WALES): (I)IRREVOCABLY APPOINTS EC3 SERVICES LIMITED, HAVING ITS REGISTERED OFFICE AT 51 EASTCHEAP, LONDON, EC3M 1JP, AS ITS AGENT FOR SERVICE OF PROCESS IN RELATION TO ANY PROCEEDINGS BEFORE THE ENGLISH COURTS IN
CONNECTION WITH ANY CREDIT DOCUMENT AND (II) AGREES THAT FAILURE BY AN AGENT FOR SERVICE OF PROCESS TO NOTIFY THE RELEVANT CREDIT PARTY OF THE PROCESS WILL NOT INVALIDATE THE PROCEEDINGS CONCERNED. 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 PARENT (ON BEHALF OF ALL THE CREDIT PARTIES) MUST IMMEDIATELY (AND IN ANY EVENT WITHIN FIVE DAYS OF SUCH EVENT TAKING PLACE) APPOINT ANOTHER AGENT ON TERMS
ACCEPTABLE TO THE FACILITY AGENT. FAILING THIS, THE FACILITY AGENT MAY APPOINT ANOTHER AGENT FOR THIS PURPOSE.
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EACH PARTY TO THIS AGREEMENT EXPRESSLY AGREES AND CONSENTS TO THE PROVISIONS OF THIS
SECTION 14.07.
14.08
Counterparts
. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto
shall be lodged with the Borrower and the Facility Agent.
14.09
Effectiveness
. This Agreement shall take effect as a
deed on the date (the “
Effective Date
”) on which (i) the Borrower, the Guarantor, the Agents and each of the Lenders who are initially parties hereto shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Facility Agent or, in the case of the Lenders and the other Agents, shall have given to the Facility Agent written or facsimile notice (actually received) at such office that the same has been
signed and mailed to it, (ii) the Borrower shall have paid to the Facility Agent for its own account and/or the account of Lenders and/or Agents, as the case may be, the fees required to be paid pursuant to that certain commitment letter, dated
October 11, 2010, among the Parent, the Hermes Agent, Deutsche Schiffsbank Aktiengesellschaft, DnB NOR Bank ASA, HSBC Bank plc, KfW IPEX-Bank GmbH and Nordea Bank Norge ASA (the “
Commitment Letter
”) and (iii) the Credit
Parties shall have provided (x) the “Know Your Customer” information required pursuant to the USA PATRIOT Act (Title III of Pub.: 107-56 (signed into law October 26, 2001)) (the “
PATRIOT Act
”) and (y) such
other documentation and evidence necessary in order to carry out and be reasonably satisfied with other similar checks under all applicable laws and regulations pursuant to the Transaction and the Hermes Cover, in each case as requested by the
Facility Agent, the Hermes Agent or any Lender in connection with each of the Facility Agent’s, the Hermes Agent’s, Hermes’ and each Lender’s internal compliance regulations. The Facility Agent will give the Parent, the Borrower
and each Lender prompt written notice of the occurrence of the Effective Date.
14.10
Headings Descriptive
. The
headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
14.11
Amendment or Waiver; etc.
(a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may
be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective Credit Parties party thereto, the Hermes Agent and the Required Lenders,
provided
that no such change,
waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender), (i) extend the final scheduled maturity of any Loan, extend the timing for or reduce the principal amount of any Scheduled Repayment,
increase or extend any Commitment (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Commitments shall not constitute an increase of the Commitment
of any Lender), or reduce the rate (including, without limitation, the Applicable Margin) or extend the time of payment of interest on any Loan or Commitment Commission or fees (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates and (y) any amendment or modification to the
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definitions used in the financial covenants set forth in Sections 10.06 through 10.09, inclusive, in this Agreement shall not constitute a reduction in the rate of interest for purposes of this
clause (i)), or reduce the principal amount thereof (except to the extent repaid in cash), (ii) release any of the Collateral (except as expressly provided in the Credit Documents) under any of the Security Documents, (iii) amend, modify
or waive any provision of Section 13 or this Section 14.11, (iv) change the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Loans and Commitments are included on the Effective Date) or a provision which expressly requires the consent of all the Lenders,
(v) consent to the assignment and/or transfer by the Parent and/or Borrower of any of its rights and obligations under this Agreement, or (vi) replace the Parent Guaranty or release the Parent Guaranty from the relevant guarantee to which
such Guarantor is a party (other than as provided in such guarantee);
provided
,
further
, that no such change, waiver, discharge or termination shall (u) without the consent of Hermes, amend, modify or waive any provision that
relates to the rights or obligations of Hermes and (v) without the consent of each Agent and/or each Joint Lead Arranger, as applicable, amend, modify or waive any provision relating to the rights or obligations of such Agent and/or such Joint
Lead Arranger, as applicable.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the
provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 14.11(a), the consent of the Required Lenders is obtained but the consent of each Lender (other than any Defaulting
Lender) is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 2.11 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting
Lender’s Commitment (if such Lender’s consent is required as a result of its Commitment), and/or repay outstanding Loans and terminate any outstanding Commitments of such Lender which gave rise to the need to obtain such Lender’s
consent, in accordance with Section 4.01(d),
provided
that, unless the Commitments are terminated, and Loans repaid, pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders
or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving
effect to the proposed action) and the Hermes Agent shall specifically consent thereto,
provided
,
further
, that in any event the Borrower shall not have the right to replace a Lender, terminate its Commitment or repay its Loans solely
as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 14.11(a).
14.12
Survival
. All indemnities set forth herein including, without limitation, in Sections 2.08, 2.09, 2.10, 4.04, 14.01 and 14.05 shall, subject to Section 14.13 (to the extent applicable),
survive the execution, delivery and termination of this Agreement and the making and repayment of the Loans.
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14.13
Domicile of Loans
. Each Lender may transfer and carry its Loans at, to or for
the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 14.13 would, at the time of such transfer, result in
increased costs under Section 2.08, 2.09, or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay
any other increased costs of the type described above resulting from changes after the date of the respective transfer).
14.14
Confidentiality
. Each Lender agrees that it will use its best efforts not to disclose without the prior consent of the
Parent or the Borrower (other than to their respective Affiliates or their respective Affiliates’ employees, auditors, advisors or counsel or to another Lender if the Lender or such Lender’s holding or parent company, Affiliates or board
of trustees in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section 14.14 to the same extent as such Lender) any information with
respect to the Parent or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document,
provided
that the Hermes Agent may disclose any information to Hermes,
provided
,
further
, that any Lender may disclose any such information (a) as has become generally available to the public other than by virtue of a breach of this Section 14.14 by the respective Lender, (b) as may be required in any
report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or similar organizations (whether in the United States, the United Kingdom or elsewhere) or their
successors, (c) as may be required in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any law, order, regulation or ruling applicable to such Lender, (e) to an Agent (f) to any
prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Commitments or any interest therein by such Lender,
provided
that such prospective transferee expressly agrees to be
bound by the confidentiality provisions contained in this Section 14.14 and (g) to Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or any person acting or purporting to act on any of their
behalves. In the case of Section 14.14(g), each of the Parent and the Borrower acknowledges and agrees that any such information may be used by Hermes and/or the Federal Republic of Germany and/or the European Union and/or any agency thereof or
any person acting or purporting to act on any of their behalves for statistical purposes and/or for reports of a general nature.
14.15
Register
. The Facility Agent shall maintain a register (the “
Register
”) on which it will record the Commitments from time to time of each of the Lenders, the Loans made by
each of the Lenders and each repayment and prepayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect
of such Loans. With respect to any Lender, the assignment or transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitments shall not be effective until such assignment or
transfer is recorded on the Register maintained by the Facility Agent with respect to ownership of such Commitments and Loans. Prior to such recordation all amounts owing to the transferor with respect to such Commitments and Loans shall remain
owing to the transferor. The registration of an assignment or transfer of all or part of any Commitments and Loans (as the case may be) shall be recorded by the Facility Agent on the Register only upon the acceptance by the Facility Agent of a
properly executed and delivered Transfer Certificate or Assignment Agreement pursuant to Section 13.06(a) or 13.07(a), respectively.
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14.16
Third Party Rights
. Other than the Other Creditors with respect to
Section 4.05, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement unless expressly provided to the contrary in a Credit
Document. Notwithstanding any term of any Credit Document, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.
14.17
Judgment Currency
. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Facility Agent could purchase the specified currency with such other currency at the Facility Agent’s Frankfurt office on the Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or an Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or an Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or an Agent (as the case may be) may in accordance with normal banking procedures purchase the
specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to such Lender or an Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or an Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds the
sum originally due to any Lender or an Agent, as the case may be, in the specified currency, such Lender or an Agent, as the case may be, agrees to remit such excess to the Borrower.
14.18
Language
. All correspondence, including, without limitation, all notices, reports and/or certificates, delivered by any
Credit Party to an Agent or any Lender shall, unless otherwise agreed by the respective recipients thereof, be submitted in the English language or, to the extent the original of such document is not in the English language, such document shall be
delivered with a certified English translation thereof. In the event of any conflict between the English translation and the original text of any document, the English translation shall prevail unless the original text is a statutory instrument,
legal process or any other document of a similar type or a notice, demand or other communication from Hermes or in relation to the Hermes Cover.
14.19
Waiver of Immunity
. The Borrower, in respect of itself, each other Credit Party, its and their process agents, and its and their properties and revenues, hereby irrevocably agrees that, to
the extent that the Borrower, any other Credit Party or any of its or their properties has or may hereafter acquire any right of immunity from any legal proceedings, whether in the United Kingdom, the United States, Bermuda, the Bahamas, Germany,
the Isle of Man or elsewhere, to enforce or collect upon the Credit Document Obligations of the Borrower or any
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other Credit Party related to or arising from the transactions contemplated by any of the Credit Documents, including, without limitation, immunity from service of process, immunity from
jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, the Borrower, for
itself and on behalf of the other Credit Parties, hereby expressly waives, to the fullest extent permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United
Kingdom, the United States, Bermuda, the Bahamas, Germany, the Isle of Man or elsewhere.
14.20
“Know Your
Customer” Notice
. Each Lender hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act and/or other applicable laws and regulations, it is required to obtain, verify, and record information that identifies each
Credit Party, which information includes the name of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the PATRIOT Act and/or such other applicable laws and regulations, and each
Credit Party agrees to provide such information from time to time to any Lender.
14.21
Release of Liens and the Parent
Guaranty; Flag Jurisdiction Transfer
. (a) In the event that any Person conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of the Collateral to a Person that is not (and is not required to become) a Credit
Party in a transaction permitted by this Agreement or the Credit Documents (including pursuant to a valid waiver or consent), each Lender hereby consents to the release and hereby directs the Collateral Agent to release any Liens created by any
Credit Document in respect of such Collateral, and, in the case of a disposition of all of the Equity Interests of any Credit Party (other than the Borrower) in a transaction permitted by this Agreement and as a result of which such Credit Party
would not be required to guaranty the Credit Document Obligations pursuant to Section 15, each Lender hereby consents to the release of such Credit Party’s obligations under the relevant guarantee to which it is a party. Each Lender hereby
directs the Collateral Agent, and the Collateral Agent agrees, upon receipt of reasonable advance notice from the Borrower, to execute and deliver or, at the Borrower’s expense, file such documents and perform other actions reasonably necessary
to release the relevant guarantee, as applicable, and the Liens when and as directed pursuant to this Section 14.21. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Borrower and at the
Borrower’s expense to terminate the Liens and security interests created by the Credit Documents when all the Credit Document Obligations (other than contingent indemnification Credit Document Obligations and expense reimbursement claims to the
extent no claim therefore has been made) are paid in full and Commitments are terminated. Any representation, warranty or covenant contained in any Credit Document relating to any such Equity Interests or, asset of the Borrower shall no longer be
deemed to be made once such Equity Interests or asset is so conveyed, sold, leased, assigned, transferred or disposed of.
(b)
In the event that the Borrower desires to implement a Flag Jurisdiction Transfer with respect to the Collateral Vessel, upon receipt of reasonable advance notice thereof from the Borrower, the Collateral Agent shall use commercially reasonably
efforts to provide, or (as necessary) procure the provision of, all such reasonable assistance as any Credit Party may request from time to time in relation to (i) the Flag Jurisdiction Transfer, (ii) the related
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deregistration of the Collateral Vessel from its previous flag jurisdiction, and (iii) the release and discharge of the related Security Documents provided that the relevant Credit Party
shall pay all documented out of pocket costs and expenses reasonably incurred by the Collateral Agent or a Secured Creditor in connection with provision of such assistance. Each Lender hereby consents, in connection with any Flag Jurisdiction
Transfer and subject to the satisfaction of the requirements thereof to be satisfied by the relevant Credit Party, to (i) deregister the Collateral Vessel from its previous flag jurisdiction and (ii) release and hereby direct the
Collateral Agent to release the Collateral Vessel Mortgage. Each Lender hereby directs the Collateral Agent, and the Collateral Agent agrees to execute and deliver or, at the Borrower’s expense, file such documents and perform other actions
reasonably necessary to release the Vessel Mortgage when and as directed pursuant to this Section 14.21(b).
14.22
Partial Invalidity
. If, at any time, any provision of the Credit Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. Any such illegal, invalid or unenforceable provision shall to the extent possible be
substituted by a legal, valid and enforceable provision which reflects the intention of the parties to this Agreement.
SECTION 15.
Parent Guaranty
.
15.01
Guaranty and Indemnity
. The Parent irrevocably and unconditionally:
(i) guarantees to each Lender Creditor punctual performance by each other Credit Party of all that Credit Party’s Credit Document Obligations under the Credit Documents; or
(ii) undertakes with each Lender Creditor that whenever another Credit Party does not pay any amount when due under or in
connection with any Credit Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(iii) agrees with each Lender Creditor that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Lender
Creditor immediately on demand against any cost, loss or liability it incurs as a result of a Credit Party not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Credit Document
on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Section 15 if the amount claimed had been recoverable on the basis of a guarantee.
15.02
Continuing Guaranty
. This guarantee is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Credit Party under the Credit Documents, regardless of any intermediate payment or discharge in whole or in part.
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15.03
Reinstatement
. If any discharge, release or arrangement (whether in respect of
the obligations of any Credit Party or any security for those obligations or otherwise) is made by a Lender Creditor in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency,
liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this Section 15 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
15.04
Waiver of Defenses
. The obligations of the Guarantor under this Section 15 will not be affected by an act, omission,
matter or thing which, but for this Section 15, would reduce, release or prejudice any of its obligations under this Section 15 (without limitation and whether or not known to it or any Lender Creditor) including:
(i) any time, waiver or consent granted to, or composition with, any Credit Party or other person;
(ii) the release of any other Credit Party or any other person under the terms of any composition or arrangement with any
creditor of any member of the NCLC Group;
(iii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Credit Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realize the full value of any security;
(iv) any incapacity or lack of power,
authority or legal personality of or dissolution or change in the members or status of a Credit Party or any other person;
(v) any amendment, novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Credit Document or any other document or security including,
without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Credit Document or other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Credit Document or any other
document or security; or
(vii) any insolvency or similar proceedings.
15.05
Guarantor Intent
. Without prejudice to the generality of Section 15.04, the Guarantor expressly confirms that it
intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Credit Documents and/or any facility or amount made available under any of the Credit Documents
for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing
any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated
with any of the foregoing.
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15.06
Immediate Recourse
. The Guarantor waives any right it may have of first
requiring any Credit Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Section 15. This waiver applies
irrespective of any law or any provision of a Credit Document to the contrary.
15.07
Appropriations
. Until all amounts
which may be or become payable by the Credit Parties under or in connection with the Credit Documents have been irrevocably paid in full, each Lender Creditor (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Lender Creditor (or
any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same;
and
(ii) hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of
the Guarantor’s liability under this Section 15.
15.08
Deferral of Guarantor’s Rights
. Until all
amounts which may be or become payable by the Credit Parties under or in connection with the Credit Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, the Guarantor will not exercise any rights which it may
have by reason of performance by it of its obligations under the Credit Documents or by reason of any amount being payable, or liability arising, under this Section 15:
(i) to be indemnified by a Credit Party;
(ii) to claim any contribution from any other guarantor of any Credit Party’s obligations under the Credit Documents;
(iii) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Lender Creditors under the Credit Documents or of any other guarantee or security taken pursuant to, or in connection with, the Credit Documents by any Lender Creditor;
(iv) to bring legal or other proceedings for an order requiring any Credit Party to make any payment, or perform any
obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Section 15.01;
(v) to exercise any right of set-off against any Credit Party; and/or
(vi) to claim or prove as a creditor of any Credit Party in competition with any Lender Creditor.
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If the Guarantor receives any benefit, payment or distribution in relation
to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Lender Creditors by the Credit Parties under or in connection with the Credit Documents to be
repaid in full on trust for the Lender Creditors and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Section 4.
15.09
Additional Security
. This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by any Credit Party.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as a deed on the date first above written.
Signed as a deed and delivered on behalf of NCL CORPORATION LTD., a
Bermuda company, as Parent and Guarantor, by [full name of person signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated
[
], 2010
|
|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
|
Authorized signatory
Signed as a deed and delivered on behalf of NORWEGIAN JEWEL LIMITED, an Isle of Man company, as Borrower, by [full name of person signing], being a
person who, in accordance with the laws of that territory, is acting under the authority of the company under a power of attorney dated [
], 2010
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|
|
|
|
By:
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|
/s/ Authorized Signatory
|
|
|
|
Title:
|
Authorized signatory
Signed as a deed and delivered on behalf of KFW IPEX-BANK GMBH, a bank organized under the laws of Germany,
individually and as Facility Agent, Collateral Agent and a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
|
|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
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|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
|
Authorized signatories
Signed as a deed and delivered on behalf of NORDEA BANK NORGE ASA, a bank organized under the laws of
Norway, individually and as Documentation Agent and a Joint Lead Arranger by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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By:
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|
/s/ Authorized Signatory
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|
|
|
Title:
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|
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|
By:
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|
/s/ Authorized Signatory
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|
|
|
Title:
|
Authorized signatories
Signed as a deed and delivered on behalf of DNB NOR BANK ASA, a bank organized under the laws of Norway,
individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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|
|
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By:
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|
/s/ Authorized Signatory
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|
|
|
Title:
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|
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By:
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|
/s/ Authorized Signatory
|
|
|
|
Title:
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Authorized signatories
Signed as a deed and delivered on behalf of DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT, a bank organized under
the laws of Germany, individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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|
|
|
|
By:
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|
/s/ Authorized Signatory
|
|
|
|
Title:
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|
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By:
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|
/s/ Authorized Signatory
|
|
|
|
Title:
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Authorized signatories
Signed as a deed and delivered on behalf of HSBC BANK PLC, a bank organized under the laws of England,
individually and as a Joint Lead Arranger, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
|
|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
|
Authorized signatories
Signed as a deed and delivered on behalf of COMMERZBANK AKTIENGESELLSCHAFT, a bank organized under the laws
of Germany, as Hermes Agent, by [full name of persons signing], being a person who, in accordance with the laws of that territory, is acting under the authority of the bank
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|
|
|
|
By:
|
|
/s/ Authorized Signatory
|
|
|
|
Title:
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|
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|
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By:
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|
/s/ Authorized Signatory
|
|
|
|
Title:
|
Authorized signatories
SCHEDULE 1.01(a)
COMMITMENTS
|
|
|
|
|
|
|
|
|
|
|
Lender
|
|
Commitments
|
|
|
Percentage
|
|
|
Deutsche Schiffsbank Aktiengesellschaft
|
|
|
[*]
|
|
|
|
[*]
|
|
|
DnB NOR Bank ASA
|
|
|
[*]
|
|
|
|
[*]
|
|
|
HSBC Bank plc
|
|
|
[*]
|
|
|
|
[*]
|
|
|
KfW IPEX-Bank GmbH
|
|
|
[*]
|
|
|
|
[*]
|
|
|
Nordea Bank Norge ASA
|
|
|
[*]
|
|
|
|
[*]
|
|
|
Total
|
|
€
|
126,075,000
|
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE 1.01(b)
EXISTING JEWEL SCHEDULED REPAYMENTS
|
|
|
|
|
|
|
Date
|
|
Repayment
Amount
|
|
|
February 4, 2011
|
|
$
|
13,511,000
|
|
|
August 4, 2011
|
|
$
|
13,511,000
|
|
|
February 6, 2012
|
|
$
|
13,511,000
|
|
|
August 6, 2012
|
|
$
|
13,511,000
|
|
|
February 4, 2013
|
|
$
|
13,511,000
|
|
|
August 5, 2013
|
|
$
|
13,511,000
|
|
|
February 4, 2014
|
|
$
|
13,511,000
|
|
SCHEDULE 1.01(c)
MANDATORY COSTS
|
1.
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
|
2.
|
On the first day of each Interest Period (or as soon as possible thereafter) the Facility Agent shall calculate, as a percentage rate, a rate (the “
Additional
Cost Rate
”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Facility Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
|
|
3.
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Facility
Agent. This percentage will be certified by that Lender in its notice to the Facility Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender’s participation in all Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
|
|
4.
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows:
|
in relation to a sterling Loan:
[*] per cent. per annum
in relation to a Loan in any currency other than sterling:
[*] per cent. per annum.
Where:
|
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
|
|
|
B
|
is the percentage rate of interest (excluding the Applicable Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified
in paragraph (b) of Section 2.06 payable for the relevant Interest Period on the Loan.
|
|
|
C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of
England.
|
|
|
D
|
is the percentage rate per annum payable by the Bank of England to the Facility Agent on interest bearing Special Deposits.
|
|
|
E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Facility Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
|
|
5.
|
For the purposes of this Schedule:
|
“
Eligible Liabilities
” and “
Special Deposits
” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
“
Fees Rules
”
means the rules on periodic fees contained in the
Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
“
Fee Tariffs
” means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to
the Fees Rules but taking into account any applicable discount rate);
“
Participating Member State
” means any
member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“
Tariff Base
” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules; and
“
Unpaid Sum
” means any sum due and payable but unpaid by any Credit Party under the Credit Documents.
|
6.
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not
as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
|
|
7.
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Facility
Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
|
|
8.
|
Each Lender shall supply any information required by the Facility Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
|
|
a)
|
the jurisdiction of its Facility Office; and
|
|
|
b)
|
any other information that the Facility Agent may reasonably require for such purpose.
|
Each Lender shall promptly notify the Facility Agent of any change to the information provided by it pursuant to this paragraph.
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9.
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the
Facility Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
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|
10.
|
The Facility Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall
be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
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|
11.
|
The Facility Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
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|
12.
|
Any determination by the Facility Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
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|
13.
|
The Facility Agent may from time to time, after consultation with the Parent and the Lenders, determine and notify to all parties to the Credit
Agreement any amendments which are required to be made to this Schedule in order to comply with any change in law,
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|
|
regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.
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SCHEDULE 5.06
NOTICES, ACKNOWLEDGMENTS AND CONSENTS
Notices
1. Notice of Assignment of the Construction Contract for Breakaway One, Ltd. in the form of Part 1 of Schedule 1 to the Vessel 1 Assignment of Contracts
shall be delivered to the Yard.
2. Notice of Assignment of the Construction Contract for Breakaway Two, Ltd. in the form of Part 1 of
Schedule 1 to the Vessel 2 Assignment of Contracts shall be delivered to the Yard.
3. Notice of Assignment of the Refund Guarantees for
Breakaway One, Ltd. in the form of either (x) Part 2 of Schedule 1 to the Vessel 1 Assignment of Contracts or (y) Schedule 1 to the Vessel 1 Assignment of KfW Refund Guarantee, as applicable, shall be delivered to the applicable issuer of
Refund Guarantee(s) issued on or prior to the Initial Borrowing Date (under and as defined in the Breakaway One Facility).
4. Notice of
Assignment of the Refund Guarantees for Breakaway Two, Ltd. in the form of either (x) Part 2 of Schedule 1 to the Vessel 2 Assignment of Contracts or (y) Schedule 1 to the Vessel 2 Assignment of KfW Refund Guarantee, as applicable, shall
be delivered to the applicable issuer of Refund Guarantee(s) issued on or prior to the Initial Borrowing Date (under and as defined in the Breakaway Two Facility).
Financing Statements
1. UCC-1 shall be filed with the Florida Secured Transaction Registry
naming Breakaway One, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
2. UCC-1 shall be filed
with the Florida Secured Transaction Registry naming Breakaway Two, Ltd. as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
3. UCC-1 shall be filed with the Florida Secured Transaction Registry naming Norwegian Jewel Limited as Debtor and KfW IPEX-Bank GmbH in its capacity as Collateral Agent, as Secured Party.
SCHEDULE 5.12
INITIAL BORROWING DATE OPINIONS
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1.
|
Pursuant to Section 5.12(a) and subject to the assumptions, qualifications and definitions set forth in such opinion, O’Melveny & Myers, Counsel to
the Credit Parties opine as follows (capitalized terms used in this Clause 1 have the meanings ascribed to them in such opinion):
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|
|
(a)
|
The Transaction Documents provide that they are to be governed by English law. To the extent that the Transaction Documents are governed by English law or the law
of any other jurisdiction, we express no opinion as to those laws or their applicability to matters covered by this opinion, nor do we express any opinion as to whether or not New York law is applicable to the Transaction Documents. However, we
are of the opinion that if the Transaction Documents were governed by the laws of the state of New York (without reference to New York choice of law principles that would result in the application of the laws of another jurisdiction), the execution
and delivery by each Credit Party of each Transaction Document to which it is a party do not, and each Credit Party’s performance of its obligations under each Transaction Document to which it is a party will not, violate, breach, or constitute
a default, or result in the creation or imposition of any lien, charge or encumbrance (other than the liens, charges or encumbrances under the Transaction Documents) upon any of the assets of such Credit Party or give any other party thereto the
right to accelerate under, any existing obligation or restriction on such Credit Party under any other agreement (the “
Other Agreements
”) listed in
Schedule I
to the Officer’s Certificate. If any Other Agreement is
governed by the laws of a jurisdiction other than the state of New York, we have assumed such Other Agreement would be interpreted in accordance with its plain meaning, except that technical terms would mean what lawyers generally understand them to
mean for agreements governed by the laws of the state of New York. We express no opinion with respect to any provision of any Other Agreement to the extent that an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination.
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2.
|
Pursuant to Section 5.12(b) and subject to the assumptions, qualifications and definitions set forth in such opinion, CAINS Advocates Limited, special Isle of Man
counsel to the Borrower, opines as follows (capitalized terms used in this Clause 2 have the meanings ascribed to them in such opinion):
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Status
The Borrower is a company limited by shares duly incorporated and
validly existing under the laws of the Isle of Man and possesses the capacity to sue and to be sued in its own name.
No
Liquidator or Receiver
As far as was shown on the Search Date on the file of the Borrower maintained by the
Registrar, no steps have been or are being taken to appoint a receiver, liquidator or analogous person or body over or to wind up or dissolve the Borrower or to take analogous action.
Capacity
The Borrower has the corporate capacity to execute, deliver and perform its obligations under the Documents.
Authority
The Borrower has passed all necessary resolutions and taken all necessary corporate actions to authorise the execution, delivery and
performance of each of the Documents and to incur the obligations referred to therein, and each of the Documents has been validly executed by and on behalf of the Borrower.
Authority and Due Execution
The Documents have been executed by duly
authorised representatives of the Borrower and constitute legal, valid and binding obligations of the Borrower enforceable in accordance with their respective terms and conditions.
Approvals and Consents
No authorisations, approvals and consents (including without limitation any exchange control consents) from any governmental or other authorities in the Isle of Man are required to be obtained by the
Borrower in relation to the execution and delivery by it of the Documents or the exercise of its rights and the performance of its obligations thereunder or to make the Documents admissible in evidence in the Isle of Man.
Non Conflict
The execution, delivery and performance of the Documents by the Borrower does not and will not:
(i) contravene any existing law or regulation of the Isle of Man to which it is subject; or
(ii) contravene any provision of the Borrower’s Memorandum and Articles of Association.
Filings and Registrations
In order not to be void against the liquidator
and any creditor of the Borrower, each of the Security Documents should be delivered to the Registrar (together with the prescribed particulars) within one month of the date of its creation (pursuant to Section 138 of the Act); save for such
delivery, it is not necessary or advisable under the laws of the Isle of Man, in order to ensure the validity, effectiveness and enforceability of the Documents, that the same be filed, registered or recorded in any public office in the Isle of Man
or that any other action be taken.
Stamp and Registration Duties
The Documents do not give rise to any registration duty, stamp duty or similar duty in or imposed by the Isle of Man or any authority or
agency thereof.
Immunity
The Borrower is subject to the jurisdiction of the Courts of the Isle of Man and is not entitled to claim any immunity from suit or execution of any judgment on the ground of sovereignty or otherwise.
Choice of Law
The choice of law provision in each of the Documents (save for the Mortgage) (providing for the same to be governed and construed in accordance with the laws of England) is a valid and binding obligation
of the Borrower and will be recognised by the Courts of the Isle of Man as the proper law of the Documents.
Submission to
Jurisdiction
The submission by the Borrower to the jurisdiction of the Courts of England contained in each of the
Documents (save for the Mortgage) is a valid submission and is binding on the Borrower.
Enforcement of English Judgment
Any judgment for a fixed sum of money obtained against the Borrower in the High Court of England will be enforceable against
it in the Isle of Man provided that such judgment is final and conclusive and was not obtained by fraud or contrary to public policy of the Isle of Man at the time or contrary to the rules of natural justice in the Isle of Man at the time and
provided that the correct procedures under the laws of the Isle of Man (including registration of the English judgment with the Isle of Man Courts) are complied with.
Enforcement of Bahamian Judgment
There is no statutory procedure in the
Isle of Man for the recognition or enforcement of judgments of the courts of the Bahamas. However, under Isle of Man common law, a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment may be
recognised and enforced by an action for the amount due under it provided that the judgment: (i) is for a debt or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or
other penalty); (ii) is final and conclusive; (iii) was not obtained by fraud; (iv) is not one whose enforcement would be contrary to public policy in the Isle of Man; and (v) was not obtained in proceedings which were opposed to
natural justice in the Isle of Man.
No Isle of Man Licensing Requirement
It is not necessary in order to enable the Lenders to claim and enforce in the Isle of Man any right afforded by the Documents, or by
reason of the execution, delivery and performance of the Documents by the Lenders, that the Lenders should be licensed, qualified or otherwise entitled to carry on business in or otherwise registered with any authority of or in the Isle of Man.
No Deemed Isle of Man Residence
The Lenders will not be deemed to be resident, domiciled or carrying on business in the Isle of Man by reason only of the execution, performance and/or enforcement of any of the Documents.
No Default Proceedings Revealed
As at the Search Date, our search of the Court Indices via the General Registry website in the Isle of Man did not reveal the existence of any default proceedings in the Isle of Man to which the Borrower
is a party.
No Exchange Control
No foreign exchange control regulations are in existence in the Isle of Man in relation to the exchange and remittance of sterling or any other currency from the Isle of Man and no authorisations,
approvals or consents will be required from any authority in the Isle of Man in relation to the exchange and remittance of sterling and any other currency whether awarded by reason of a judgment or otherwise falling due and having been paid in the
Isle of Man in relation to any obligation set out in any of the Documents.
Isle of Man Withholding Tax
All payments made by the Borrower under the Documents may be made without deduction of any Isle of Man withholding tax.
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3.
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Pursuant to Section 5.12(c) and subject to the assumptions, qualifications and definitions set forth in such opinion, Cox Hallett Wilkinson, special Bermuda
counsel to the Credit Parties, opines as follows (capitalized terms used in this Clause 3 have the meanings ascribed to them in such opinion):
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|
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(a)
|
Each of the Parent, Breakaway One and Breakaway Two (for the purpose of this Clause 3 of Schedule 5.12 only, the “Companies) is duly incorporated with limited
liability and is existing and in good standing under the laws of Bermuda (meaning that it has not failed to make any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck
off the Register of Companies and thereby cease to exist under the laws of Bermuda).
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|
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(b)
|
The entering into of the relevant Opinion Documents and the execution and delivery of the relevant Opinion Documents by each of the Companies and the performance by
each of the Companies of its obligations thereunder:
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|
|
(i)
|
are within its corporate powers and have been duly authorised; and
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|
|
(ii)
|
will not conflict with the memorandum of association or bye-laws of such Company or violate or result in the breach of any Bermuda law or regulation.
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|
|
(c)
|
Each of the Opinion Documents has been duly executed by the Companies party thereto and constitutes legal, valid and binding obligations of such Companies, enforceable
in Bermuda in accordance with its terms.
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|
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(d)
|
Based solely on the Litigation Searches, there are no judgments against, nor legal or governmental actions or proceedings pending in Bermuda to which any of the
Companies is subject.
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|
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(e)
|
Based solely on the Company Searches, there are no notices to the Registrar of the passing of a resolution of members or creditors to wind up any of the Companies and
no notice appointing a liquidator or receiver has been provided to the Registrar.
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|
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(f)
|
No authorisation, consent, approval, license, qualification or formal exemption from, or any filing, declaration or registration with any court, governmental or
municipal authority or other public body of Bermuda is required in connection with the execution and delivery of the Opinion Documents, the performance by each of the Companies of its obligations under the relevant Opinion Documents, the
enforceability or admissibility in evidence of the Opinion Documents.
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(g)
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Opinion Documents that they be registered in any register kept by, or filed with, any
governmental or municipal authority or other public or regulatory body in Bermuda. However, on the basis that each of the Security Documents creates a charge over assets of the relevant Companies, it is desirable, in order to ensure the priority in
Bermuda of the charge created, that such document be registered in the Register of Charges in accordance with Section 55 of the Act. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have
priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the property subject to such charge. A registration fee will be payable in respect of the registration.
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(h)
|
The Opinion Documents will not be subject to ad valorem stamp duty, registration, recording, filing or other fees, duties or taxes in Bermuda and no such fees, duties
or taxes are payable in Bermuda in connection with the execution, delivery or performance of the Opinion Documents.
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(i)
|
The choice of the English Laws as the governing law of the Opinion Documents is a valid choice of law and the submission by the Companies to the exclusive jurisdiction
of the English Courts is valid and binding upon the Companies and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws:
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(i)
|
which such court considers to be procedural in nature;
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(ii)
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which are revenue or penal laws; or
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(iii)
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the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda.
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(j)
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The payment obligations of the Companies under the Opinion Documents are direct, general and unconditional obligations of such Company and rank at least pari passu with
all other present or future unsecured and unsubordinated indebtedness of such Company other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general application.
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(k)
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None of the Companies nor any of their respective assets are entitled to immunity from suit, execution, attachment of legal process under the laws of Bermuda, whether
characterised as sovereign immunity or otherwise from any legal action or proceeding in Bermuda (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
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(l)
|
No Bermuda taxes are imposed by withholding or otherwise on any payment to be made by any of the Companies under the relevant Opinion Documents or are imposed on or by
virtue of the execution or delivery by the Companies of the Opinion Documents or any document or instrument to be executed or delivered under the Opinion Documents.
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(m)
|
The courts of Bermuda will recognise as a valid judgment any final and conclusive judgment obtained against the Companies by any party to the Opinion Documents based
upon such document in the English Courts under which a sum of money is payable (other than a sum of money payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty or multiple damages as defined in the
Protection of Trading Interests Act 1981) and such a judgment will be enforced by the Supreme Court of Bermuda under The Judgments (Reciprocal Enforcement) Act 1958 (the “1958 Act”) without re-examination of the merits of the case provided
that:
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(i)
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the judgment is final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to an appeal in the relevant jurisdiction;
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(ii)
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the judgment has not been given on appeal from a court which is not a superior court; and
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(iii)
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the judgment is duly registered in the Supreme Court of Bermuda in circumstances in which its registration is not liable thereafter to be set aside.
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(n)
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Under Section 3 of the 1958 Act, the registration of the judgment of the English Courts in the Supreme Court of Bermuda involves the conversion of the judgment
debt into Bermuda Dollars at the date of such court’s judgment. However, the Bermuda Monetary Authority has indicated that its present policy is to give the consent necessary for the Bermuda dollar award made by the Supreme Court of Bermuda to
be converted into external currency. No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement.
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(o)
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No party to the Opinion Documents will be deemed to be resident, domiciled, carrying on business or subject to taxation in Bermuda by reason only of the negotiation,
preparation, execution, performance, enforcement of, and or receipt of any payment due from the Companies under the relevant Opinion Documents.
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(p)
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It is not necessary under the laws of Bermuda:
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(i)
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in order to enable any party to enforce its rights under the Opinion Documents; or
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(ii)
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by reason of the execution, delivery and performance of the Opinion Documents by the parties thereto,
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that such persons should be licensed, qualified or otherwise entitled to carry on business in Bermuda.
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4.
|
Pursuant to Section 5.12(d) and subject to the assumptions, qualifications and definitions set forth in such opinion, White & Case LLP (London Office),
special English counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers opines as follows (capitalized terms used in this Clause 4 have the meanings ascribed to them in such opinion):
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(b)
|
the obligations expressed to be assumed by each of the Borrower, the Parent and the ECF Borrowers in the Credit Documents to which it is a party constitute its valid,
legally binding and enforceable obligations;
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(c)
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there is no requirement under English law for the consent or authorisation of, or the filing, recording or enrolment of any documents with, any court or other authority
in England and Wales to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Credit Documents;
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(d)
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English courts of competent jurisdiction will give effect to the choice of English law as the proper law of the Credit Documents and will regard express submission by
the Borrower, the Parent and each of the ECF Borrowers to the jurisdiction contained in the Credit Documents as sufficient to confer jurisdiction upon them over proceedings within the scope of the submission;
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(e)
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no stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Credit Documents;
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(f)
|
neither the Construction Contracts nor the Refund Guarantees contain any restrictions which prevent them from being assigned to, or charged in favour of, the Collateral
Agent; and
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(g)
|
the Assignments of Contract are effective to create valid security interests in favour of the Collateral Agent.
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5.
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Pursuant to Section 5.12(e) and subject to the assumptions, qualifications and definitions set forth in such opinion, White & Case LLP (Hamburg Office)
special German counsel to the Documentation Agent for the benefit of the Joint Lead Arrangers opine as follows (capitalized terms used in this Clause 5 have the meanings ascribed to them in such opinion):
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The Declaration of Guarantee constitutes a valid and legally binding guarantee of the Federal Republic of Germany towards [
—
] subject to the specific provisions set out in the Declaration of Guarantee and subject to the applicable General Terms and Conditions and Guidelines.
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6.
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Pursuant to Section 5.12(f) and subject to the assumptions, qualifications and definitions set forth in such opinion, Graham Thompson & Co., special
Bahamas counsel to the Credit Parties opine as follows (capitalized terms used in this Clause 6 have the meanings ascribed to them in such opinion):
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(a)
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Under the laws of The Bahamas the Borrower is the registered owner of record of sixty-four sixty-fourth shares, being the whole thereof of the Norwegian Jewel and the
Norwegian Jewel Mortgage constitutes the valid and legally binding act of the Borrower and the Norwegian Jewel Mortgage is enforceable in accordance with its terms, and further, the Norwegian Jewel Mortgage creates in favour of the Mortgagee a valid
and effective fourth priority legal mortgage over the Norwegian Jewel and there are no other charges, mortgages or encumbrances on record with respect thereto. It should be noted that maritime liens as set out in Section 281 of The Merchant
Shipping Act of The Bahamas have priority over mortgages even if such liens are incurred after a mortgage has been registered.
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(b)
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No further registration authorization, approval or consent or other official action in The Bahamas is necessary to render any of the Documents or the security
respectively created thereby valid, perfected and enforceable.
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(c)
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All filing, registration and recording fees required under the laws of The Bahamas in connection with the Norwegian Jewel Mortgage and other fees necessary to ensure
the validity, effectiveness and priority of any liens, charges and encumbrances created under the Norwegian Jewel Mortgage have been paid.
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(d)
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The courts of The Bahamas will recognize as a valid judgment and enforce any final, conclusive and enforceable judgment obtained against a mortgagor in a United Kingdom
court without re-examination of the merits of the case subject to registration of the judgment under the provisions of the Reciprocal Enforcements of Judgments Act of the Bahamas.
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(e)
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The Norwegian Jewel Mortgage constitutes the legal, valid and binding obligations of the Borrower and is enforceable in accordance with their respective terms.
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(f)
|
No consents, authorizations or other approvals are required from any governmental or other authority of The Bahamas for the execution, delivery or performance of any of
the Documents by any of the parties thereto or the consummation of the transactions contemplated therein.
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(g)
|
Neither the execution nor delivery of the Documents by the Borrower, nor the performance of its obligations under the Documents, will contravene any existing applicable
law or regulation of The Bahamas.
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(h)
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The Borrower is not entitled or required under any existing applicable law or regulation of The Bahamas to make any withholding or deduction in respect of any tax or
otherwise from any payment which it is or may be required to make under the Documents (or any of them) and other than the fees paid in connection with the registration of the Norwegian Jewel Mortgage no tax, impost, duty or registration fee is
payable on any of the Documents in The Bahamas save for registration fees on the Norwegian Jewel Mortgage.
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(i)
|
Other than the fees paid in connection with the registration of the Norwegian Jewel Mortgage, no stamp or registration duty or similar taxes or charges are payable in
The Bahamas in respect of the Documents.
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(j)
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Under the laws of The Bahamas, the Mortgagee will not be deemed to be resident, domiciled or carrying on any commercial activity in The Bahamas or subject to any tax of
The Bahamas as a result of its entry into the Documents or the performance of any of the transactions contemplated thereby. It is not necessary for the Mortgagee to be authorized or qualified to carry on business in The Bahamas or establish a place
of business in The Bahamas for the entry into or performance of the Documents.
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(k)
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It is not necessary or advisable to take any further action in the future in order to preserve the security interests referred to above or the priority thereof in
connection with the Norwegian Jewel Mortgage.
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7.
|
Pursuant to Section 5.12(g) and subject to the assumptions, qualifications and definitions set forth in such opinion, Holland & Knight, special Florida
Counsel to the Credit Parties as follows (capitalized terms used in this Clause 7 have the meanings ascribed to them in such opinion):
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To the extent that a security interest in the Collateral can be perfected by filing a UCC-1 financing statement in the State of Florida, perfection would occur by filing such financing statement with the
office described in Annex 2 to the opinion. Note that, if the debtor purporting to grant such security interest changes the location of its chief executive office to another location, the effectiveness of the Financing Statements will cease on the
expiration of four months after such change or, if earlier, when perfection would have otherwise ceased, unless such security interest becomes perfected under the law of such other location prior to such expiration.
SCHEDULE 6.10
MATERIAL LITIGATION
None.
SCHEDULE 8.03
EXISTING AGREEMENTS
None.
SCHEDULE 8.12
CAPITALIZATION
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Credit Party
|
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Owner
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Type of
Shares
|
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|
Number
of
Shares
Owned
|
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|
Percent of
Outstanding
Shares Owned
|
|
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Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
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Ordinary
|
|
|
|
2
|
|
|
|
100
|
%
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
|
Common
|
|
|
|
997,218,181
|
|
|
|
100
|
%
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
|
Ordinary
|
|
|
|
12,000
|
|
|
|
100
|
%
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SCHEDULE 8.13
SUBSIDIARIES
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|
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Name of Subsidiary
|
|
Direct Owner(s)
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|
Percent(%)
Ownership
|
|
|
Jurisdiction of
Organization
|
|
Arrasas Limited
|
|
NCL Corporation Ltd.
|
|
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100
|
|
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Isle of Man
|
|
Breakaway One, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Breakaway Two, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Maritime Investment, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
NCL America Holdings, LLC
|
|
Arrasas Limited
|
|
|
100
|
|
|
Delaware
|
|
NCL America LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
NCL (Bahamas) Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
NCL Cruises Ltd.
|
|
NCL Holding ASA
|
|
|
100
|
|
|
Bermuda
|
|
NCL Holding ASA
1
|
|
Arrasas Limited
|
|
|
100
|
|
|
Norway
|
|
NCL International, Ltd.
|
|
Arrasas Limited
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Dawn Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Epic, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Gem, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Jewel Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Pearl, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Spirit, Ltd.
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
Norwegian Star Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Isle of Man
|
|
Norwegian Sun Limited
|
|
NCL International, Ltd.
|
|
|
100
|
|
|
Bermuda
|
|
PAT Tours, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
Polynesian Adventure Tours, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Hawaii
|
|
1
|
This company is under voluntary liquidation.
|
|
|
|
|
|
|
|
|
|
|
|
Name of Subsidiary
|
|
Direct Owner(s)
|
|
Percent(%)
Ownership
|
|
|
Jurisdiction of
Organization
|
|
Pride of America Ship Holding, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
|
Pride of Hawaii, LLC
|
|
NCL America Holdings, LLC
|
|
|
100
|
|
|
Delaware
|
SCHEDULE 8.19
COLLATERAL VESSEL
|
|
|
|
|
|
|
|
|
|
|
Vessel Name
|
|
Vessel Owner
|
|
Vessel IMO Number
|
|
|
Flag and Registry
|
|
Norwegian Jewel
|
|
Norwegian Jewel Limited
|
|
|
9304045
|
|
|
Bahamas
|
SCHEDULE 8.21
APPROVED CLASSIFICATION SOCIETIES
American Bureau of Shipping
Nippon Kaiji Kyokai
Germanischer Lloyd
Lloyd’s Register of Shipping
Bureau Veritas
Det Norske Veritas
SCHEDULE 9.03
REQUIRED INSURANCE
1. For the purpose of this Schedule 9.03, the
following terms shall have the meanings ascribed to them as follows:
“
Compulsory Acquisition Compensation
”
shall mean all moneys or other compensation whatsoever payable by reason of the compulsory acquisition of the Collateral Vessel other than by requisition for hire;
“
Insurances
” shall mean all policies and contracts of the insurance and entries of the Collateral Vessel in a protection and indemnity or war risks association which are effected in
respect of the Collateral Vessel, its freight, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all Compulsory Acquisition Compensation;
“
Security Period
” shall mean that period from the Delivery Date until the date on which all Loans shall have been fully
paid, satisfied and extinguished.
“
Total Loss
” shall mean any actual or constructive or arranged or agreed
or compromised total loss or compulsory acquisition of the Collateral Vessel (excluding any requisition for hire).
2. The
Borrower shall insure the Collateral Vessel, or procure that the Collateral Vessel is insured, in its name and keep the Collateral Vessel and procure that the Collateral Vessel is kept insured on an agreed value basis for an amount in Dollars
approved by the Collateral Agent,
provided
that:
(a) the insured value of the Collateral Vessel shall at all times be
equal to or greater than its fair market value,
(b) the insured value of the Collateral Vessel shall be equal to or greater
than [*] of the then applicable Total Commitment, and
(c) the hull and machinery insured value for the Collateral Vessel
shall at all times be equal to no less than [*] of the total insured value of the Collateral Vessel and no more than [*] of the total insured value of the Collateral Vessel shall consist of hull interest and freight interest insurance
through internationally recognized independent first class insurance companies, underwriters, war risks and protection and indemnity associations
reasonably acceptable to the Collateral Agent in each instance on terms and conditions approved by the Collateral Agent (with such approval not to be unreasonably withheld) including as to deductibles but at least in respect of:
(1) marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London insurance
markets under English marine policies, or the Norwegian Plan or Collateral Agent-approved policies containing the ordinary conditions applicable to similar vessels;
(2) war risks including the Missing Vessel Clause terrorism, piracy and confiscation, and,
should Institute War and Strike Clauses, Hulls Conditions prevail, the London Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
(3) excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not
recoverable in consequence of the value at which the Collateral Vessel is assessed for the purpose of such claims exceeding the insured value;
(4) protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is [*] for pollution risk
and this to be increased if requested by the Collateral Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class
cruise shipowners or operators in waters where the Collateral Vessel trades from time to time during the Security Period;
(5)
when and while the Collateral Vessel is laid-up, in lieu of hull insurance, normal port risks;
(6) such other risks as the
Collateral Agent may from time to time reasonably require;
and in any event in respect of those risks and at those levels covered by first
class and prudent owners and/or financiers in the international market in respect of similar tonnage,
provided
that if any of such insurances are also effected in the name of any other person (other than the Borrower or the Collateral Agent)
such person shall if so required by the Collateral Agent execute a preferred assignment and/or transfer of its interest in such insurances in favour of the Collateral Agent in similar terms mutatis mutandis to the Assignment of Insurances,
provided
further that the Borrower has first obtained the consent of the First Mortgagee, the Second Mortgagee and the Third Mortgagee (as each such term is defined in the Vessel Mortgage) to such an assignment.
3. The Collateral Agent at the cost of the Borrower or the Parent shall take out, in each case, for an amount in Dollars approved by the
Collateral Agent but not being, collectively, less than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance on such conditions as the Collateral Agent may reasonably require, the Parent
and the Borrower having no interest or entitlement in respect of such policies; the Collateral Agent undertakes to use its reasonable endeavors to match the premium level that the Borrower or the Parent would have paid if they had arranged such
cover on such conditions (as demonstrated to the reasonable satisfaction of the Collateral Agent).
4. If the Collateral
Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the “EEZ”) as such term is defined in the US Oil Pollution Act 1990 (“OPA”), the Borrower shall comply
strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Collateral Vessel presently trades or may or will trade at any time during the existence of the Vessel Mortgage
and in particular before such trade is commenced and during the entire period during which such trade is carried on the Borrower shall:
(i) pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Collateral Vessel in the market;
(ii) make all such quarterly or other voyage declarations as may from time
to time be required by the Collateral Vessel’s protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Collateral Agent copies of such declarations;
(iii) submit the Collateral Vessel to such additional periodic, classification, structural or other surveys which may be
required by the Collateral Vessel’s protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Collateral Agent copies of reports made in respect of such surveys;
(iv) implement any recommendations contained in the reports issued following the surveys referred to in sub-clause
(iii) above within the time limit specified therein and provide evidence satisfactory to the Collateral Agent that the protection and indemnity insurers are satisfied that this has been done;
(v) in particular strictly comply with the requirements of any applicable law, convention, regulation, proclamation or
order with regard to financial responsibility for liabilities imposed on the Borrower or the Collateral Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and provide the
Collateral Agent on demand with such information or evidence as it may reasonably require of such compliance;
(vi) procure that the protection and indemnity insurances do not contain a clause excluding the Collateral Vessel from
trading in waters of the United States of America and the EEZ or any other provision analogous thereto and provide the Collateral Agent with evidence that this is so; and
(vii) strictly comply with any operational or structural regulations issued from time to time by any relevant authorities
under OPA so that at all times the Collateral Vessel falls within the provisions which limit strict liability under OPA for oil pollution.
5. The Borrower shall give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form
reasonably approved by the Collateral Agent.
6. The Borrower shall execute and deliver all such documents and do all such
things as may be necessary to confer upon the Collateral Agent legal title to the Insurances in respect of the Collateral Vessel and to procure that the interest of the Collateral Agent is at all times filed with all slips, cover notes, policies and
certificates of entry and to procure (a) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the
Collateral Vessel and (b) that a loss payable clause in the form reasonably approved by the Collateral Agent and exceeding [*] shall be endorsed upon the protection and indemnity certificates of entry in respect of the Collateral Vessel.
7. At the Borrower’s expense the Borrower will cause such insurance broker and the P & I club or association
providing P & I insurance to agree to advise the Collateral Agent by telex or telecopier confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act
or omission on the part of the Borrower of which it has knowledge and which might invalidate or render unenforceable, in whole or in part, any insurance on the Collateral Vessel, and to provide an opportunity of paying any such unpaid premium or
call, such right being exercisable by the
Collateral Agent on a vessel by vessel and not on a fleet basis. In addition, the Borrower or the Parent
shall promptly provide the Collateral Agent with any information which the Collateral Agent reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to the adequacy of the insurances
effected or proposed to be effected in accordance with the provisions contained herein as of the date hereof or in connection with any renewal thereof, and the Borrower or the Parent shall upon demand indemnify the Collateral Agent in respect of all
reasonable fees and other expenses incurred by or for the account of the Collateral Agent in connection with any such report; provided the Collateral Agent shall be entitled to such indemnity only for one such report during any period of twelve
months.
8. The Borrower shall procure that each of the relevant brokers and associations furnish the Collateral Agent with a
letter of undertaking in such usual form as may be reasonably required by the Collateral Agent and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Collateral Vessel.
9. The Borrower shall punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the
Collateral Vessel and to produce all relevant receipts when so required by the Collateral Agent;
10. The Borrower shall renew
each of the Insurances on the Collateral Vessel at least [*] Business Days before the expiry thereof and give immediate notice to the Collateral Agent of such renewal and procure that the relevant brokers or associations shall promptly confirm in
writing to the Collateral Agent that such renewal is effected, it being understood by the Borrower that any failure to renew the Insurances on the Collateral Vessel at least [*] Business Days before the expiry thereof or to give or procure the
relevant notices of such renewal shall constitute an Event of Default.
11. The Borrower shall arrange for the execution of
such guarantees as may from time to time be required by any protection and indemnity and/or war risks association.
12. The
Borrower shall furnish to the Collateral Agent from time to time on request with full information about all Insurances maintained on the Collateral Vessel and the names of the offices, companies, underwriters, associations or clubs with which such
Insurances are placed.
13. The Borrower shall not agree to any variation in the terms of any of the Insurances on the
Collateral Vessel without the prior approval of the Collateral Agent (which approval shall not be unreasonably withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Borrower’s
consent, in which case the Borrower shall notify the Collateral Agent of such variation in a timely manner) nor do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable,
suspended, defeated or unenforceable and not to suffer or permit the Collateral Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers
concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a variation in the terms of the Insurances is imposed as aforesaid and in the absolute opinion of the Collateral
Agent its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Collateral Agent would be adversely affected, the Borrower undertakes promptly to make such changes to the Insurances,
or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Borrower at that time, as the Collateral Agent shall reasonably require.
14. The Borrower shall not, without the prior written consent of the Collateral Agent,
settle, compromise or abandon any claim in respect of any of the Insurances on the Collateral Vessel other than a claim of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss.
15. The Borrower shall promptly furnish the Collateral Agent with full information regarding any casualties or other accidents or damage
to the Collateral Vessel involving an amount in excess of [*].
16. The Borrower shall apply or ensure the appliance of all
such sums receivable in respect of the Insurances on the Collateral Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received.
17. In the event of the Borrower defaulting in insuring and keeping insured its Collateral Vessel as hereinbefore provided then the
Collateral Agent may (but shall not be bound to) insure the Collateral Vessel or enter the Collateral Vessel in such manner and to such extent as the Collateral Agent in its discretion thinks fit and in such case all the cost of effecting and
maintaining such Insurance together with interest thereon shall be paid on demand by the Borrower to the Collateral Agent.
SCHEDULE 10.01
EXISTING LIENS
None.
SCHEDULE 14.03A
CREDIT PARTY ADDRESSES
If to any Credit Party:
7665 Corporation Center Drive
Miami, Florida 33126
United States of America
Attn: Chief Financial Officer and General Counsel
With copies to
:
Apollo Management, L.P.
9 West
57
th
Street
New York, NY 10019
Attn: Steve Martinez
Tel. No.: (212) 515-3200
Fax
No.: (212) 515-3288
and
O’Melveny & Myers LLP
7 Times
Square
New York, NY 10036
Attn:
Brad Finkelstein
Tel. No.: (212) 326-2000
Fax No.: (212) 326-2600
SCHEDULE 14.03B
LENDER ADDRESSES
|
|
|
|
|
INSTITUTIONS
|
|
ADDRESSES
|
|
|
|
|
DEUTSCHE SCHIFFSBANK A
KTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail:
alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email:
claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
KfW IPEX-Bank GmbH,
as Facility
Agent for the Lenders party
to the Credit Agreement
referred to below
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
]
Ladies and Gentlemen:
The undersigned, NORWEGIAN JEWEL LIMITED, an Isle of Man
company (the “
Borrower
”), refers to the Credit Agreement, dated as of [
], 2010 (as amended, restated, novated, modified and/or supplemented from time to
time, the “
Credit Agreement
”, unless otherwise defined herein, capitalized terms defined therein being used herein as therein defined), among NCL CORPORATION LTD., a Bermuda company (the “
Parent
”), the Borrower, the
Lenders from time to time party thereto, you, as Facility Agent and as Collateral Agent under the Security Documents, NORDEA BANK NORGE ASA, as Documentation Agent, COMMERZBANK AKTIENGESELLSCHAFT, as Hermes Agent for such Lenders and the other
parties thereto, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement, that the Borrower hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the “
Proposed Borrowing
”) as required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________ (the “
Proposed Borrowing Date
”).
1
(ii) The portion of the Total Commitments to be utilized on the Proposed Borrowing Date (the “
Proposed Utilized Commitments
’) is € ___________.
(iii) The Loans to be made on the Proposed Borrowing Date shall consist of Tranche [A][B] Loans.
|
1
|
Shall be a Business Day at least three Business Days after the date hereof,
provided
that (in each case) any such notice shall be deemed to have
been given on a certain day only if given before 11:00 a.m. (Frankfurt time) on such day (unless such 11:00 a.m. deadline is waived in the case of the Initial Proposed Borrowing Date).
|
Exhibit A
Page 2
(iv) The Parent and/or the Borrower and/or [Breakaway One][Breakaway
Two] [have] [have not] entered into Earmarked Foreign Exchange Arrangements with respect to the amount required to be paid to Hermes and/or the Yard on the Proposed Borrowing Date [and the Dollar Equivalent of the aggregate principal amount of the
Proposed Utilized Commitments is
[
]].
2
[Attached hereto as
Annex A
is evidence of such Earmarked Foreign Exchange Arrangements.]
(v) The initial Interest Period for the Proposed Borrowing is _____
[month(s)].
3
(vi) The proceeds of the Proposed Borrowing shall be deposited in the following accounts:
|
|
|
|
|
|
|
|
|
|
|
Bank and Account No.
|
|
Account Name
|
|
|
Amount to be Disbursed
(indicate Dollars or
Euros)
4
|
|
|
[ ]
|
|
|
[
|
]
|
|
|
[
|
]
|
(vii) The Dollar
Availability on the Proposed Borrowing Date is [
]. Attached hereto as
Annex B
are calculations evidencing such Dollar Availability.
In connection with the Proposed Borrowing, the Borrower hereby certifies as follows:
(i) As of the Proposed Borrowing Date, all conditions and requirements under the [VESSEL 1] [VESSEL 2] Construction Contract required to
be satisfied on such Proposed Borrowing Date have been satisfied, other than those that are not materially adverse to the Lenders.
(ii) Both on the date hereof and as of the Proposed Borrowing Date, the representations and warranties made by each Credit Party in or pursuant to the Credit Documents are true and correct in all material
respects, on and as of such Proposed Borrowing Date as if made on and as of such Proposed Borrowing Date, unless stated to relate to a specific earlier
|
2
|
Dollar Equivalent to be included if the Borrower has entered into Earmarked Foreign Exchange Arrangements.
|
|
3
|
The initial Interest Period for any Loan shall commence on the Proposed Borrowing Date of such Loan and each Interest Period occurring thereafter in
respect of such Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires and shall be for a three or six month period.
|
|
4
|
Euro disbursement only available if the Parent and/or the Borrower have not entered into Earmarked Foreign Exchange Arrangements. date, in which case
such representations and warranties were true and correct in all material respects as of such earlier date.
|
Exhibit A
Page 3
(iii) Both on the date hereof and as of the Proposed Borrowing Date after giving effect
to the Proposed Borrowing, no Default or Event of Default is or will be continuing.
|
|
|
|
|
Very truly yours,
NORWEGIAN JEWEL LIMITED
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
Annex A
Evidence of Earmarked Foreign Exchange Arrangements
[See attached]
Annex B
Dollar Availability Calculation
[See attached.]
EXHIBIT B
From BankAssure Insurance Services
[*]: THE CONFIDENTIAL PORTION HAS
BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
[*]
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT C
|
To:
KFW IPEX-Bank GmbH, as Collateral Agent,
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attn: Claudia Wenzel/
Christian Schweiger
Copy to:
Deutsche Schiffsbank AG
DnB Nor Bank ASA
HSBC Bank plc
Nordea Bank Norge ASA
From:
Aon Risk Services Inc, of
Florida
Date: [
—
], 20[
—
]
Dear Sirs,
1. This Certificate is delivered
pursuant to Section 5.07 of the Credit Agreement dated as of [•], 2010 and made among Norwegian Jewel Limited, as Borrower, NCL Corporation Ltd. (“
NCLC
”) as Parent, the Lender Creditors from time to time party thereto and
KFW IPEX-Bank GmbH, as Facility Agent and Collateral Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”).
Capitalized terms used and not otherwise defined in this Certificate shall have the meanings assigned to such terms in the Credit Agreement.
2. We hereby certify to you that, with respect to the Vessel, on and as of the date of this Certificate:
(i) the insurance cover referred to below is placed and maintained with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily
insured against by similarly situated insureds for the protection of the Facility Agent, the Collateral Agent and/or the Lender Creditors as mortgagees of the Vessel; and
(ii) the insurance cover referred to in this Certificate conforms with the Required Insurances including (without limitation) hull and machinery, war risks, loss of hire (if applicable) and protection and
indemnity insurance set forth in Schedule 9.03 of the Credit Agreement.
3. The insurance cover referred to in paragraph 2(i) above comprises:
Protection & Indemnity Coverage, Certificate No 259429, February 20, 2010-11, issued by The West of England Ship Owners
Mutual Insurance Association.
Yours truly,
For and on behalf of
Aon Risk Services Inc. of Florida
Aon Risk Sloution
| Marine Practice Group
1001 Brickell Bay drive | Suite 1100 | Miami, FL 33131
f + 1.305.372.9950 | f + 1.305.372.8599 | toll free: +1.800.743.3466
aon.com
EXHIBIT D
FORM OF SECRETARY’S CERTIFICATE
OF
CREDIT PARTIES
[ ], 2010
The undersigned Secretary or Assistant Secretary (as applicable) of each of the entities listed on
Schedule I
hereto (each, a “
Credit Party
”) does hereby certify the following to
KfW IPEX-Bank GmbH (“
KfW IPEX
”), as Facility Agent in connection with the Credit Agreement, dated as of [ ],
2010, among NCL Corporation Ltd., Norwegian Jewel Limited, as Borrower, the Lenders from time to time party thereto, KfW IPEX, as Facility Agent and Collateral Agent under the Security Documents, Nordea Bank Norge ASA, as Documentation Agent and
Commerzbank Aktiengesellschaft, as Hermes Agent (as the same may be amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”). All capitalized terms used in this certificate shall have the meanings assigned
to them in the Credit Agreement, unless otherwise defined in this certificate.
1. Attached hereto as
Exhibit A
is a
true and complete copy of minutes or resolutions duly adopted by the board of directors (or equivalent) of each Credit Party authorizing, among other things, the execution, delivery and performance of the Credit Documents to which such Credit Party
is a party, and such minutes or resolutions (or equivalent) have not since their adoption been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and are in full force and effect on the date hereof.
2. Attached hereto as
Exhibit B
is a true, correct and complete copy of the certificate of incorporation and by-laws or
equivalent organizational documents of each Credit Party, each of which is as of the date hereof in full force and effect.
3.
The persons whose names appear on
Exhibit C
hereto are, as of the date hereof, duly elected or appointed, as applicable, qualified, and acting officers or directors of each Credit Party, holding the offices or directorships set forth beside
their names, and are authorized to execute and deliver the Credit Documents on behalf of such Credit Party, and the signature appearing next to each name is the genuine signature of such officer or director.
4. On the date hereof, the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true
and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof, both before and after giving effect to the incurrence of Loans on the date hereof and the application of the
proceeds thereof, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date.
5. On the date hereof, no Default or Event of Default has occurred and is continuing or would result from the Borrowing to occur on the
date hereof or from the application of the proceeds thereof.
6. There is no proceeding for the dissolution or liquidation of
any Credit Party or threatening any Credit Party’s existence.
IN WITNESS WHEREOF, each of the Credit Parties has caused this Secretary’s Certificate
to be executed and delivered by its duly authorized representative as of the date first set forth above.
|
|
|
|
|
NCL CORPORATION LTD.
NCL INTERNATIONAL, LTD.
BREAKAWAY ONE, LTD.
BREAKAWAY TWO, LTD.
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By:
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Name:
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Daniel S. Farkas
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Title:
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Secretary
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NORWEGIAN JEWEL LIMITED
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By:
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Name:
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Kevin M. Sheehan
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Title:
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Assistant Secretary
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I, Kevin M. Sheehan, President and Chief Executive Officer of NCL Corporation Ltd., NCL
International, Ltd., Breakaway One, Ltd. and Breakaway Two, Ltd. hereby certify that Daniel S. Farkas is the duly elected or appointed, as applicable, and qualified Secretary of NCL Corporation Ltd., NCL International, Ltd. Breakaway One, Ltd. and
Breakaway Two, Ltd. and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto
signed my name as of the date first set forth above.
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Name:
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Kevin M. Sheehan
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Title:
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President and Chief Executive Officer
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I, Daniel S. Farkas, Director of Norwegian Jewel Limited, hereby certify that Kevin M. Sheehan is the duly elected or appointed, as
applicable, and qualified Assistant Secretary of Norwegian Jewel Limited and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first set forth above.
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Name:
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Daniel S. Farkas
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Title:
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Director
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Schedule I
Credit Parties
NCL
Corporation Ltd.
NCL International, Ltd.
Norwegian Jewel Limited
Breakaway One, Ltd.
Breakaway Two, Ltd.
Exhibit A
Resolutions
Exhibit B
Organizational Documents
Exhibit C
Incumbency
NCL
Corporation Ltd.
NCL International, Ltd.
Breakaway One, Ltd.
Breakaway Two, Ltd.
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Kevin M. Sheehan
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President
Chief Executive
Officer
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Daniel S. Farkas
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Senior Vice President
General Counsel
Secretary
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Norwegian Jewel Limited
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Kevin M. Sheehan
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Assistant Secretary
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Daniel S. Farkas
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Director
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EXHIBIT E
F
ORM
O
F
T
RANSFER
C
ERTIFICATE
To: [ ] as Facility Agent and
[ ] as Hermes Agent
From: [
The Existing Lender
] (the
“
Existing Lender
”) and [
The New Lender
] (the “
New Lender
”)
Dated:
Norwegian Jewel Limited –Credit Agreement
Total Commitment—€126,075,000
dated
[ ]
( the “Credit Agreement”)
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1.
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We refer to the Credit Agreement and to the ECF Intercreditor Agreements. This agreement (the “
Agreement
”) shall take effect as a Transfer Certificate
for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
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2.
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We refer to Section 13.06 (
Procedure and Conditions for Transfer
) of the Credit Agreement:
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(a)
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The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule attached hereto in accordance with Section 13.06 (
Procedure and Conditions for Transfer
).
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(b)
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The proposed date of transfer is [ ].
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(c)
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The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule attached hereto.
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3.
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On the date of the transfer the New Lender becomes:
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(a)
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Party to the relevant Credit Documents (other than the ECF Intercreditor Agreements and the Security Trust Deed) as a Lender; and
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(b)
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Party to each ECF Intercreditor Agreement as a Jewel Lender; and
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(c)
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Party to the Security Trust Deed as a Secured Creditor.
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4.
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The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
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EXHIBIT E
2
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5.
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We refer to Clause 9.2 (
Change to the Lenders
) of each ECF Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) of the Security Trust Deed
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(a)
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In consideration of the New Lender being accepted as a Jewel Lender for the purposes of each ECF Intercreditor Agreement (and as defined therein), the New Lender
confirms that, as from the date of transfer, it intends to be party to each ECF Intercreditor Agreement as a Jewel Lender, and undertakes to perform all the obligations expressed in each ECF Intercreditor Agreement to be assumed by a Jewel Lender
and agrees that it shall be bound by all the provisions of each ECF Intercreditor Agreement, as if it had been an original party to such ECF Intercreditor Agreement.
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(b)
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In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the transfer, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
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6.
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We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the transfer becomes effective in accordance with the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
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7.
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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.
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8.
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This Agreement takes effect as a deed.
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9.
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This Agreement has been entered into on the date stated at the beginning of this Agreement.
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10.
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This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with English law.
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Note:
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The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It
is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
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EXHIBIT E
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Notice Office address, fax number and
attention details for notices and account details for payments
]
EXHIBIT E
SIGNATORIES
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[Existing Lender]
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Executed as a deed by
[name of Existing Lender]
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender] Executed as a deed by
[name of
New Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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EXHIBIT E
5
This Agreement is accepted as a Transfer Certificate for the purposes of the Credit Agreement by the
Facility Agent and by the Hermes Agent, and the date of the transfer is confirmed as [ ].
Signature of this Agreement by the
Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the transfer referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
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[Facility Agent]
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Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[Hermes Agent]
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Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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EXHIBIT E
6
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[NCL Corporation Ltd.]
1
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[Signed as a deed by
[NCL Corporation Ltd.]
, a
company incorporated in Bermuda, by
[
full name(s)
of person(s) signing
], being [a] person[s] who, in accordance with the laws of that territory, [is][are] acting under the authority of the
company.
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Signature(s)
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Authorised [signatory] [signatories]]
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1
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To be signed by the Company only if the transfer is pursuant to section 13.01(a)(ii) of the Credit Agreement.
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EXHIBIT F
Dated
2010
(1) NORWEGIAN JEWEL LIMITED
(as assignor)
(2) KFW IPEX-BANK GMBH,
(as assignee)
FORM OF
FOURTH EARNINGS ASSIGNMENT
m.v. “NORWEGIAN JEWEL”
CONTENTS
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Page
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1 Definitions
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2
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2 Covenant to Pay and Perform
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3
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3 Assignment and Negative Pledge
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3
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4 Notices of Assignment
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4
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5 Application of Earnings
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4
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6 Operation and Maintenance
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4
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7 Power of Attorney
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4
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8 Assignor’s Liability Unaffected by Assignment
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4
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9 Continuing Security
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5
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10 Further Assurance
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5
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11 Enforcement Expenses
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5
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12 Waivers, Remedies Cumulative
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5
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13 Assignment
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6
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14 Discharge of Security
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6
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15 Notices
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6
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16 Governing Law and Jurisdiction
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Schedule 1
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9
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Schedule 2
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12
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Schedule 3
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18
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Schedule 5
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24
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DEED OF ASSIGNMENT
Dated 2010
BY:
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(1)
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NORWEGIAN JEWEL LIMITED
, of International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles (the “
Assignor
”);
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IN FAVOUR OF:
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(2)
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KfW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries (as defined below) pursuant to the Security Trust Deed (the “
Assignee
”).
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WHEREAS:
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(A)
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The Assignor is the absolute owner of all the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JEWEL” (the “
Vessel
”) registered in
the name of the Assignor under the laws and flag of the Bahamas at the port of Nassau with Official Number 8000877.
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(B)
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Pursuant to a first assignment of earnings dated 4 August 2005 (the “
First Assignment
”) the Assignor assigned the benefit of the Earnings as
collateral to a first priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First
Assignee
”).
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(C)
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Pursuant to a second assignment dated 2 April 2009 (the “
Second Assignment
”) the Assignor assigned the benefit of the Earnings as collateral to a
second priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the parties set out in
Schedule 2 (the “
Second Assignee
”).
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(D)
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Pursuant to a third assignment of earnings dated 2 April 2009 (the “
Third Assignment
”) the Assignor assigned the benefit of the Earnings as
collateral to a third priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the parties
set out in Schedule 3 (the “
Third Assignee
”).
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(E)
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Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries under or pursuant to the Junior Finance Documents, the Assignor has
executed and delivered in favour of the Assignee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to assign the benefit of the Earnings to the Assignee on trust for itself and the Beneficiaries as security for the
repayment of the Secured Obligations.
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(F)
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By a deed of co-ordination dated as of the date hereof (the
“Fourth Priority Security Co-ordination Deed”
) made between (among others)
(1) the First Assignee (2) the Second Assignee, (3) the Third Assignee and (4) the Assignee, the parties have agreed (among other things) as to how the provisions of Clause 5 shall operate. Further by the
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Fourth Priority Security Co-ordination Deed it has been agreed that the benefit of this Deed shall be held by the Assignee on trust for itself and the Secured Creditors, including the Secured
Creditors set out in Schedule 4 and its and their respective successors, assignees and transferees (together the
“Beneficiaries”
).
NOW THIS DEED WITNESSES:
In this Deed
the following terms shall have the meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed. The
headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed.
“
Credit Agreement
” means that certain €126,075,000 credit agreement, dated November [
—
], 2010 among NCL Corporation Ltd., as parent,
(the “
Parent
”), the Assignor, as borrower, the lenders from time to time party thereto (the “
Lenders
”), the Assignee, as facility agent and as collateral agent under the Security Documents, Nordea Bank Norge ASA, as
documentation agent, Commerzbank AG, as Hermes agent, and the other parties thereto, as amended, novated and/or restated or otherwise modified from time to time;
“
Compulsory Acquisition
” means requisition for title or other compulsory acquisition of the Vessel including its capture, seizure, detention or confiscation or expropriation but excluding
any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency;
“
Earnings
” means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire and passage
monies, proceeds of requisition (other than proceeds of a Compulsory Acquisition), rebates and commissions, all earnings deriving from contracts of affreightment, pooling agreements, joint ventures, compensation, remuneration for salvage and towage
services, damages howsoever arising and detention monies, damages for breach of any charterparty or other contract for the employment of the Vessel, any amounts payable in consideration of the termination or variation of any charterparty or other
such contract, any reduction in the Hermes Premium repaid by Hermes to the Assignor and any other earnings whatsoever due or to become due to the Assignor;
“
Event of Default
” has the meaning ascribed to it in the Credit Agreement;
“
Junior Finance Documents
” means the “Credit Documents” as such term is defined in the Credit Agreement;
“
Lender Creditors
” means the Lenders, the Assignee and each other Agent under the Credit Agreement.
“
Liens
” has the meaning ascribed to it in the Credit Agreement;
“
Other Creditors
” means any Lender or any affiliate thereof and their successors and assigns if any (even if such Lender
subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and
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assigns, with which the Parent and/or the Assignor enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Secured Creditors
” means collectively (i) the Lender Creditors and (ii) the Other Creditors;
“
Secured Obligations
” has the meaning ascribed to it in the Credit Agreement;
“
Security Documents
” has the meaning ascribed to it in the Credit Agreement;
“
Security Period
” means the period beginning on the date of this Deed and ending on the date when the whole of the
Secured Obligations have been repaid in full and the Assignor has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense
reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Junior Finance Documents; and
“
Security Trust Deed
” means the Security Trust Deed executed on or about the date hereof by, inter alia, the Assignor,
the Guarantor, the Assignee, the Original Secured Creditors (as defined therein) and the Original Term Hedging Creditors (as defined therein).
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2
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Covenant to Pay and Perform
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The Assignor covenants with the Assignee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or
pursuant to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
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3
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Assignment and Negative Pledge
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In
consideration of (A) the Beneficiaries making certain facilities available to the Assignor pursuant to the Credit Agreement, any Interest Rate Protection Agreements and/or any Other Hedging Agreements, (B) payment by the Assignee to the
Assignor of ten Dollars (USD10) and (C) other good and valuable consideration from the Assignee to the Assignor (the adequacy and receipt whereof is hereby acknowledged by the Assignor) and as security for payment of the Secured Obligations,
the Assignor with full title guarantee hereby assigns, and grants a security interest in, and agrees to assign, and grant a security interest in, to the Assignee absolutely all its right and title to and interest in the Earnings
TO HOLD
the
same absolutely unto the Assignee, subject to the First Assignment, the Second Assignment and the Third Assignment.
The
Assignor undertakes that, except with the prior written consent of the Assignee, it will not at any time during the Security Period create or permit to
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subsist any Liens save for the First Assignment, the Second Assignment and the Third Assignment (and except for Permitted Liens) on all or any part of the Assignor’s right, title and
interest in and to the Earnings of the Vessel.
The Assignor undertakes immediately to give notice substantially in the form of Schedule 5 to any employer of the Vessel or other
person from whom any of the Earnings may be due if required by the Assignee following an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed, or where such contract for the employment of the Vessel exceeds
or is capable of exceeding six (6) months’ duration and the Assignor undertakes to procure that such person acknowledges and consents to such assignment if the said person is part of the NCLC Group, and otherwise to use its best endeavours
to procure that such person acknowledges and consents to such assignment, by signing an endorsement of the notice substantially in the form set out in Schedule 5.
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5
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Application of Earnings
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All Earnings received by the Assignee pursuant to the assignment in this Deed shall be applied in accordance with clause 3.4 of the Fourth
Priority Security Co-ordination Deed and section 4.05 of the Credit Agreement.
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6
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Operation and Maintenance
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The Assignor undertakes to the Assignee that it will comply with all of its obligations with respect to the operation and maintenance of
the Vessel set out in the Junior Finance Documents.
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7.1
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The Assignor hereby irrevocably appoints and constitutes the Assignee as its true and lawful attorney with full power (in the name of the Assignor or otherwise) to
demand, compound and give acquittance for any monies and claims for monies due or to become due, to endorse any cheque or other instrument or order in connection therewith and to file any claims or take any action or institute any proceedings which
may seem to the Assignee to be necessary or advisable and otherwise to do any and all things which the Assignor itself could do in relation to the property hereby assigned provided that the power of attorney created by this Clause 7 shall take
effect only from and after the occurrence of an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed, or, in the case of the execution of notices in the form of Schedule 5, an Event of Default that is
continuing. The exercise of such power by the Assignee shall not put any person dealing with the Assignee on any enquiry and the exercise by the Assignee of such power shall be conclusive evidence of its right to exercise it. The Assignor hereby
ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this Deed shall do in its capacity as such, to the extent permissible hereunder.
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8
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Assignor’s Liability Unaffected by Assignment
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8.1
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It is agreed that notwithstanding the assignments contained herein:
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4
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8.1.1
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the Assignee shall not be obliged to make any enquiries as to the nature or sufficiency of any payment received by the Assignee or its order under those assignments or
to make any claim or take any other action to collect any monies or to enforce any rights and benefits assigned to the Assignee or to which the Assignee may at any time be entitled thereunder; and
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8.1.2
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the Assignor shall remain liable to perform all the obligations assumed by it in relation to any charter or contract of affreightment or employment of the Vessel and
the Assignee shall not be under any obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Assignor to perform its obligations in respect thereof.
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9.1
|
This Deed and the assignments herein shall be:
|
|
|
9.1.1
|
a continuing security remaining in full force and effect until payment in full of each and every part of the Secured Obligations;
|
|
|
9.1.2
|
in addition to and not in substitution for or in derogation of any other security held by the Assignee from time to time in respect of the Secured Obligations.
|
|
|
10.1
|
The Assignor will, from time to time on being required to do so by the Assignee, do or procure the doing of all such acts and/or execute or procure the execution of all
such documents in a form satisfactory to the Assignee as the Assignee may reasonably consider necessary for giving full effect to any of the Security Documents including this Deed or securing to the Assignee the full benefit of the rights, powers
and remedies conferred upon the Assignee in any such Security Document including this Deed.
|
|
|
11.1
|
The Assignor shall reimburse the Assignee on demand for the charges and expenses (including the fees and expenses of legal advisors and value added tax or any similar
tax thereon) incurred by it in connection with the enforcement of, or the preservation of, any rights under this Deed.
|
|
12
|
Waivers, Remedies Cumulative
|
No failure to
exercise and no delay in exercising on the part of the Assignee any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. No waiver by the Assignee shall be effective unless it is in writing.
5
The rights and remedies of the Assignee provided herein are cumulative and not exclusive of
any rights or remedies provided by law.
If any
provision of this Deed or any of the other Security Documents is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
Time is
of the essence in respect of all of the obligations of the Assignor under this Deed provided however that the Assignee shall not be entitled to enforce its rights under the assignments contained in this Deed otherwise than in circumstances which
constitute an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed.
|
|
13.1
|
Benefit of agreement
|
This Deed shall be binding upon the Assignor and its successors and assigns and shall inure to the benefit of the Assignee and their
respective successors and assigns.
|
|
13.2
|
Disclosure of information
|
Any of the Beneficiaries may disclose to a potential transferee or assignee or to any other person who may otherwise propose to enter into
contractual relations with any of them in relation to this Deed such information about the Assignor as such Beneficiary shall consider appropriate subject always to the provisions of section 14.14 of the Credit Agreement where, for the purpose of
this Deed, references to “
Lender
” shall be read and construed as “
Beneficiary
”.
|
|
13.3
|
Contracts (Rights of Third Parties) Act 1999 (the “Act”)
|
A person who is not a party to this Deed has no right under the Act to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from
the Act.
Following the repayment or payment to the Assignee of all the Secured Obligations the Assignee will at the Assignor’s request and
expense reassign to the Assignor the property assigned to the Assignee by this Deed without recourse to any representation or warranty by or from the Assignee.
All demands and
notices made or given hereunder shall be made or given in accordance with section 14.03 of the Credit Agreement.
6
|
16
|
Governing Law and Jurisdiction
|
|
|
16.1
|
This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
|
16.2
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
16.2.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
16.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 16.2 is for the benefit of the Assignee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
|
|
16.3
|
The Assignor waives any objection which it may now or later have (whether on the ground of forum non conveniens or otherwise) to any proceedings relating to this Deed
being brought in the courts of England or in any court which is covered by Clause 16.2.
|
|
|
16.4
|
The Assignor agrees to comply with the provisions of 14.07 of the Credit Agreement.
|
|
|
16.5
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Assignor and may be enforced without
review in any other jurisdiction.
|
|
|
16.6
|
Nothing in this Clause 16 shall exclude or limit any right which the Assignee may have (whether under the laws of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
16.7
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
7
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
NORWEGIAN JEWEL LIMITED
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact,
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
by
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
8
Schedule 1
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
9
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
|
Fax:
|
+65 6536 6449/6532 5347
|
|
Attn:
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
10
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
11
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
12
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
Part II
EUR40,000,000 Loan for Pride of America Ship Holding, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
13
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
14
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
|
Email:
|
lam.curacao@dvbbank.com/james.neira@dvbbank.com
|
Part III
EUR308,130,000 Loan for Pride of Hawaii, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
15
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
16
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
17
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended and/or restated from time to time
Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Security Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lower Saxony
Guarantee Agent
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
18
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/
|
Mrs Anne Randewig
|
Email:
|
shipfinance@commerzbank.com
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
19
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND
PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
Attn:
|
Douglas Newton / Russell Parker
|
|
Email:
|
douglas_newton@bankofscotland.co.uk
|
UNICREDIT BANK AG
(formerly known as
Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
Fax:
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
Mr Peter-Alexander Wunner/
|
Mr Michael McCarthy
|
Email:
|
peter-alexander.wunner@unicreditgroup.de/
|
|
michael.mccarthy@unicreditgroup.de
|
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
Attn:
|
Dr Matthias Fischer
|
|
Email:
|
matthias.fischer@schiffsbank.com
|
20
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
Attn:
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
oivind.haraldsen@fokus.no/
|
tore.braein@fokus.no
HSH
NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
Email:
|
carsten.dreyer@hsh-nordbank.com
|
|
Email:
|
frauke.hay@hsh-nordbank.com
|
SKANDINAVISKA
ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
Attn:
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
egil.aarrestad@seb.co.uk/malcolm.stonehouse@seb.co.uk
|
21
Schedule 4
EUR126,075,000 Credit Agreement dated November [_] 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Email:
|
Claudia.wenzel@kfw.de
|
As Trustee
for:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
Ms Anne
Randewig
|
Email:
|
marcus.weber@commerzbank.com
|
|
anne.randewig@commerzbank.com
|
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
Mr Solveig N.
Knoff
|
Email:
|
amra.koluder@dnbnor.no
|
22
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 4466/ 2944
|
|
Attn:
|
Mr Stephan Pueschel
|
Mr
Christian Schweiger
|
Email:
|
stephan.pueschel@kfw.de
|
|
christian.schweiger@kfw.de
|
|
HSBC BANK PLC
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
And each other
Secured Creditor under and as defined in the Credit Agreement.
23
Schedule 5
Notice of Assignment
|
|
|
|
|
TO:
|
|
[NAME OF CHARTERER]
[Address]
|
Dear Sirs
“NORWEGIAN JEWEL” (Official Number 8000877) (the “Vessel”)
We
hereby give you notice that by a fourth assignment dated 2010 (the “
Assignment
”) we assigned to
KFW
IPEX-Bank GmbH
of
[
] acting not in its own individual capacity but solely as
assignee for the Beneficiaries (as defined in the Assignment) (the
“Assignee”
) all our right and title to and interest in all hire, freights and other earnings of the Vessel.
You are authorised to continue to pay to us the hire due under the charterparty dated
20[ ] between us in respect of the Vessel (the
“Charter”
) and any other sums due to us
under the Charter, unless you receive a notice from the Assignee to the contrary pursuant to an Event of Default under the said Assignment.
Will you please note that these instructions are not to be revoked or varied without the prior written consent of the Assignee.
Will you please acknowledge receipt of this letter by signing and returning one (1) copy to us and one (1) copy to the Assignee with the
endorsement below duly completed.
Dated
20[ ]
|
|
|
|
|
NORWEGIAN JEWEL LIMITED
|
|
|
|
|
By:
|
|
|
|
|
|
|
Title:
|
|
|
24
Acknowledgement
|
TO:
|
NORWEGIAN JEWEL LIMITED
|
International House
Castle Hill, Victoria Road
Douglas, Isle of Man
IM2 4RB
British
Isles
Dear Sirs
“NORWEGIAN JEWEL” (Official Number 8000877) (the “Vessel”)
We, the undersigned, the charterer of the Vessel under a charterparty dated
20[ ], hereby acknowledge receipt of the above notice of fourth assignment and in consideration of the payment by you of ten United States Dollars (USD10) and other good and valuable consideration, the receipt and sufficiency
of which we hereby acknowledge, we hereby (1) confirm that, other than for a first assignment, second assignment and third assignment, we have not previously received notice of any such assignment (2) consent to the assignment referred to
in the above notice and (3) agree that we will make payment of all such monies free of any set-off, counterclaim or other deduction to the account of the Assignee referred to in the above notice if so directed by the Assignee or to such other
account as the Assignee may from time to time direct.
We further agree and confirm that we acknowledge that we shall not challenge the
effectiveness of the fourth assignment referred to in the above notice.
Dated
20[ ]
|
|
|
|
|
[NAME OF CHARTERER]
|
|
|
|
|
By:
|
|
|
|
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Title:
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25
EXHIBIT G
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated
2010
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(1)
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NORWEGIAN JEWEL LIMITED
(as assignor)
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(2)
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KFW IPEX-BANK GMBH
(as assignee)
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FORM OF FOURTH INSURANCE ASSIGNMENT
m.v. “NORWEGIAN JEWEL”
EXHIBIT G
CONTENTS
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Page
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1
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Definitions and Construction
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2
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2
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Covenant to Pay and Perform
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3
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3
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Assignment and Negative Pledge
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3
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4
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Notice of Assignment of Insurances
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4
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5
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Application of Proceeds of Insurances
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4
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6
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Power of Attorney
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4
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7
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Assignor’s Liability Unaffected by Assignment
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4
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8
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Continuing Security
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5
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9
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Further Assurance
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5
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10
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Enforcement Expenses
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5
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11
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Waivers, Remedies Cumulative
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5
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12
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Assignment
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6
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13
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Discharge of Security
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6
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14
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Notices
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6
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15
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Governing Law and Jurisdiction
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6
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Schedule 1
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9
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Schedule 2
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12
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Schedule 3
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18
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Schedule 4
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22
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Schedule 5
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24
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Schedule 6
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25
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Schedule 7
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30
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DEED
Dated 2010
BY:
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(1)
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NORWEGIAN JEWEL LIMITED
, of International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles (the “
Assignor
”);
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IN FAVOUR OF:
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(2)
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KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries (as defined below) pursuant to the Security Trust Deed (the “
Assignee
”).
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WHEREAS:
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(A)
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The Assignor is the absolute owner of all of the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JEWEL” (the “
Vessel
”) registered in
the name of the Assignor under the laws and flag of the Bahamas at the port of Nassau with Official Number 8000877.
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(B)
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Pursuant to a first insurance assignment dated 4 August 2005 (the “
First Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a first priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First
Assignee
”).
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(C)
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Pursuant to a second insurance assignment dated 2 April 2009 (the “
Second Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a second priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway, as trustee for itself and the parties set
out in Schedule 2 (the “
Second Assignee
”).
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(D)
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Pursuant to a third insurance assignment dated 2 April 2009 (the “
Third Assignment
”) the Assignor assigned the benefit of the Insurances as
collateral to a third priority Bahamian statutory mortgage over the Vessel upon the terms and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the parties set
out in Schedule 3 (the “
Third Assignee
”).
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(E)
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Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries under or pursuant to the Junior Finance Documents, the Assignor has
executed and delivered in favour of the Assignee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to assign the benefit of the Insurances to the Assignee on trust for itself and the Beneficiaries as security for
the repayment of the Secured Obligations.
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(F)
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By a deed of co-ordination dated as of the date hereof (the “
Fourth Priority Security Co-ordination Deed
”) made between (among others)
(1) the First Assignee (2) the Second Assignee, (3) the Third Assignee and (4) the Assignee, the parties have agreed (among other things) as to how the provisions of Clause 5 shall operate. Further by the
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Fourth Priority Security Co-ordination Deed it has been agreed that the benefit of this Deed shall be held by the Assignee on trust for itself and the Secured Creditors, including the Secured
Creditors set out in Schedule 4 and its and their respective successors, assignees and transferees (together the “
Beneficiaries
”).
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NOW THIS DEED WITNESSES:
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1
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Definitions and Construction
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The headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed. In this Deed the following terms shall have the
meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed.
“
Credit Agreement
” means that certain €126,075,000 credit agreement, dated November [•], 2010 among NCL
Corporation Ltd., as parent, (the “
Parent
”), the Assignor, as borrower, the lenders from time to time party thereto (the “
Lenders
”), the Assignee, as facility agent and as collateral agent under the Security
Documents, Nordea Bank Norge ASA, as documentation agent, Commerzbank AG, as Hermes agent, and the other parties thereto, as amended, novated, and/or restated or otherwise modified from time to time;
“
Compulsory Acquisition
” means requisition for title or other compulsory acquisition of the Vessel including its capture,
seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or
governmental authority or agency;
“
Event of Default
” has the meaning ascribed to it in the Credit Agreement;
“
Insurances
” means all policies and contracts of insurance of the Vessel and entries of the Vessel in a
protection and indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all
compensation payable by virtue of Compulsory Acquisition of the Vessel;
“
Junior Finance Documents
” means the
Credit Documents as defined in the Credit Agreement;
“
Lender Creditors
” means the Lenders, the Assignee and
each other Agent under the Credit Agreement.
“
Liens
” has the meaning ascribed to it in the Credit Agreement;
“
Other Creditors
” means any Lender or any affiliate thereof and their successors, transferees and assigns if
any (even if such Lender subsequently ceases to be a Lender under the Credit Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Assignor enters into
any Interest Rate Protection Agreements or Other Hedging Agreements from time to time.
“
Secured Creditors
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means collectively (i) the Lender Creditors and (ii) the Other Creditors;
2
“
Secured Obligations
” has the meaning ascribed to it in the Credit
Agreement;
“
Security Documents
” has the meaning ascribed to it in the Credit Agreement;
“
Security Period
” means the period beginning on the date of this Deed and ending on the date when the whole of the
Secured Obligations have been repaid in full and the Assignor has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense
reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Junior Finance Documents; and
“
Security Trust Deed
” means the Security Trust Deed executed on or about the date hereof by, inter alia, the Assignor,
the Guarantor, the Assignee, the Original Secured Creditors (as defined therein) and the Original Term Hedging Creditors (as defined therein).
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2
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Covenant to Pay and Perform
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The Assignor covenants with the Assignee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or
pursuant to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
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3
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Assignment and Negative Pledge
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In
consideration of (A) the Beneficiaries making certain facilities available to the Assignor pursuant to the Credit Agreement, any Interest Rate Protection Agreements and/or any Other Hedging Agreements, (B) payment by the Assignee to the
Assignor of ten Dollars (USD10) and (C) other good and valuable consideration from the Assignee to the Assignor (the adequacy and receipt whereof is hereby acknowledged by the Assignor) and as security for payment of the Secured Obligations,
the Assignor with full title guarantee hereby assigns, and grants a security interest in, and agrees to assign, and grant a security interest in, to the Assignee absolutely all its right and title to and interest in the Insurances to hold the same
absolutely unto the Assignee subject to the First Assignment, the Second Assignment, and the Third Assignment.
The
Assignor undertakes that, except with the prior written consent of the Assignee, it will not at any time during the Security Period create or permit to subsist any Liens save for the First Assignment, the Second Assignment and the Third Assignment (
and except for Permitted Liens) on all or any part of the Assignor’s right and title to and interest in the Insurances.
3
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4
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Notice of Assignment of Insurances
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The Assignor undertakes immediately to give notice of the assignment of the Insurances contained in Clause 3 to all brokers, insurance companies, underwriters, protection and indemnity and/or war risk
associations through whom any of the policies or entries relating to the Insurances are effected in the form of Schedule 5 and to obtain from such brokers, insurance companies or underwriters a letter of undertaking in the form of Schedule 6 or in
such other form as the Agents may require and from such protection and indemnity or war risk associations in the form of Schedule 7 or in such other form as the Agents may agree.
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5
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Application of Proceeds of Insurances
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All proceeds of the Insurances received by the Assignee pursuant to the assignment in this Deed shall be applied in accordance with the loss payable clauses endorsed on the Insurances, clause 8 of the
Fourth Priority Security Co-ordination Deed and section 4.05 of the Credit Agreement.
The
Assignor hereby irrevocably appoints and constitutes the Assignee as its true and lawful attorney with full power (in the name of the Assignor or otherwise) to demand, compound and give acquittance for any monies and claims for monies due or to
become due, to endorse any cheque or other instrument or order in connection therewith and to file any claims or take any action or institute any proceedings which may seem to the Assignee to be necessary or advisable and otherwise to do any and all
things which the Assignor itself could do in relation to the property hereby assigned provided that the power of attorney created by this Clause 6 shall take effect only from and after the occurrence of an Event of Default, subject to the provisions
of the Fourth Priority Security Co-ordination Deed. The exercise of such power by the Assignee shall not put any person dealing with the Assignee on any enquiry and the exercise by the Assignee of such power shall be conclusive evidence of its right
to exercise it. The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this Deed shall do in its capacity as such, to the extent permissible hereunder.
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7
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Assignor’s Liability Unaffected by Assignment
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7.1
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It is agreed that notwithstanding the assignment contained herein:
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7.1.1
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the Assignee shall not be obliged to make any enquiries as to the nature or sufficiency of any payment received by the Assignee or its order under those assignments or
to make any claim or take any other action to collect any monies or to enforce any rights and benefits assigned to the Assignee or to which the Assignee may at any time be entitled thereunder; and
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7.1.2
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the Assignor shall remain liable to perform all the obligations assumed by it in relation to the Insurances and the Assignee shall not be under any obligation of any
kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Assignor to perform its obligations in respect thereof.
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4
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8.1
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This Deed and the assignments herein shall be:
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8.1.1
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a continuing security remaining in full force and effect until payment in full of each and every part of the Secured Obligations;
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8.1.2
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in addition to and not in substitution for or in derogation of any other security held by the Assignee from time to time in respect of the Secured Obligations.
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The
Assignor will, from time to time on being required to do so by the Assignee, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Assignee as the Assignee may reasonably
consider necessary for giving full effect to any of the Security Documents including this Deed or securing to the Assignee the full benefit of the rights, powers and remedies conferred upon the Assignee in any such Security Document including this
Deed.
The
Assignor shall reimburse the Assignee on demand for the charges and expenses (including the fees and expenses of legal advisors and value added tax or any similar tax thereon) incurred by it in connection with the enforcement of, or the preservation
of, any rights under this Deed.
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11
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Waivers, Remedies Cumulative
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No failure to
exercise and no delay in exercising on the part of the Assignee any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the
exercise of any other right or remedy. No waiver by the Assignee shall be effective unless it is in writing.
The
rights and remedies of the Assignee provided herein are cumulative and not exclusive of any rights or remedies provided by law.
If any
provision of this Deed or any of the other Security Documents is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
Time is
of the essence in respect of all of the obligations of the Assignor under this Deed provided however that the Assignee shall not be entitled to enforce its rights under the assignment contained in this Deed otherwise than in circumstances which
constitute an Event of Default, subject to the provisions of the Fourth Priority Security Co-ordination Deed.
5
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12.1
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Benefit of agreement
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This Deed shall be binding upon the Assignor and its successors and assigns and shall inure to the benefit of the Assignee and their
respective successors and assigns.
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12.2
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Disclosure of information
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Any of the Beneficiaries may disclose to a potential transferee or assignee or to any other person who may otherwise propose to enter into
contractual relations with any of them in relation to this Deed such information about the Assignor as such Beneficiary shall consider appropriate subject always to the provisions of section 14.14 of the Credit Agreement where, for the purpose of
this Deed, references to “
Lender
” shall be read and construed as “
Beneficiary
”.
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12.3
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Contracts (Rights of Third Parties) Act 1999 (the “Act”)
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A person who is not a party to this Deed has no right under the Act to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from
the Act.
Following the repayment or payment to the Assignee of all the Secured Obligations, the Assignee will at the Assignor’s request and
expense reassign to the Assignor the property assigned to the Assignee by this Deed without recourse to any representation or warranty by or from the Assignee.
All demands and
notices made or given hereunder shall be made or given in accordance with section 14.03 of the Credit Agreement.
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15
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Governing Law and Jurisdiction
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15.1
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This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
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15.2
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The courts of England have exclusive jurisdiction to settle any dispute:
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15.2.1
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arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
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15.2.2
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relating to any non-contractual obligations arising from or in connection with this Deed,
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(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 15.2 is for the benefit of the Assignee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
6
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15.3
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The Assignor waives any objection which it may now or later have (whether on the ground of forum non conveniens or otherwise) to any proceedings relating to this Deed
being brought in the courts of England or in any court which is covered by Clause 15.2.
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15.4
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The Assignor agrees to comply with section 15.07 of the Credit Agreement relating to the Process Agent.
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15.5
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A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Assignor and may be enforced without
review in any other jurisdiction.
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15.6
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Nothing in this Clause 15 shall exclude or limit any right which the Assignee may have (whether under the laws of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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15.7
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In this Clause “
judgment
” includes order, injunction, declaration and any other decision or relief made or granted by a court.
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7
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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for and on behalf of
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)
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NORWEGIAN JEWEL LIMITED
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)
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by
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)
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its duly appointed attorney-in-fact,
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)
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who in accordance with the laws of that territory,
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)
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is acting under the authority of the company
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)
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SIGNED SEALED
and
DELIVERED
as a
DEED
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)
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for and on behalf of
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)
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KFW IPEX-BANK GMBH
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)
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by
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)
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who in accordance with the laws of that territory,
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)
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is acting under the authority of the company
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)
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8
Schedule 1
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
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Attn:
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Mr Klaus-Dieter Schmedding
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Email:
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exportfinance@commerzbank.com
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Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
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Attn:
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Mrs Solveig Nuland Knoff
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Email:
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solveig.knoff@dnbnor.no
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9
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
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Attn:
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Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
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Email:
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shipfinance@commerzbank.com
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HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
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Fax:
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+49 69 7431 3768/2944
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Attn:
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Mr Josef Schmid/Ms Claudia Wenzel
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Email:
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josef.schmid@kfw.de/claudia.wenzel@kfw.de
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DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
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Attn:
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Mrs Amra Koluder/Mrs Ursula Mack Tonjum
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Email:
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amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
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OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
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Fax:
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+65 6536 6449/6532 5347
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Attn:
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Ms Lee King Lan/Ms Elaine Lam
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Email:
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LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
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10
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
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Attn:
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Mr Torsten Reinecke
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Email:
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shipping@nordlb.de
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CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
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Attn:
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Mr Stephan Bachmann
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Email:
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stephan.bachmann@ca-cib.com
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with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
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Attn:
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Mr Terence Yuen/Ms Iris Lai
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Email:
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terence.yuen@ca-cib.com/iris.lai@ca-cib.com
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11
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or restated from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
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Attn:
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Mr Klaus-Dieter Schmedding
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Email:
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exportfinance@commerzbank.com
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Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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Restructuring
Trustee
DnB NOR Bank ASA
Stranden 21
NO-0021 Oslo
Norway
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Attn:
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Mrs Solveig Nuland Knoff
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Email:
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solveig.knoff@dnbnor.no
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12
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
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Attn:
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Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
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Email:
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shipfinance@commerzbank.com
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HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
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Email:
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alan.p.marshall@hsbcib.com
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KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
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Fax:
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+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
Part II
EUR40,000,000 Loan for Pride of America Ship Holding, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
13
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
14
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
|
Email:
|
lam.curacao@dvbbank.com/james.neira@dvbbank.com
|
Part III
EUR308,130,000 Loan for Pride of Hawaii, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
15
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
16
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
17
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended and/or restated from time to time
Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Security Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lower Saxony
Guarantee Agent
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
18
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/
|
Mrs Anne Randewig
|
Email:
|
shipfinance@commerzbank.com
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
19
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND
PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
Attn:
|
Douglas Newton / Russell Parker
|
|
Email:
|
douglas_newton@bankofscotland.co.uk
|
UNICREDIT BANK AG
(formerly known as
Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
Fax:
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
Mr Peter-Alexander Wunner/
|
|
Email:
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
michael.mccarthy@unicreditgroup.de
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
Attn:
|
Dr Matthias Fischer
|
|
Email:
|
matthias.fischer@schiffsbank.com
|
20
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
Attn:
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
oivind.haraldsen@fokus.no/
|
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
Email:
|
carsten.dreyer@hsh-nordbank.com
|
|
Email:
|
frauke.hay@hsh-nordbank.com
|
SKANDINAVISKA
ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
Attn:
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
egil.aarrestad@seb.co.uk/
|
|
|
malcolm.stonehouse@seb.co.uk
|
21
Schedule 4
EUR126,075,000 Credit Agreement dated November [
] 2010 as amended and/or restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Email:
|
Claudia.wenzel@kfw.de
|
As Trustee for:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
|
Email:
|
marcus.weber@commerzbank.com
|
|
|
anne.randewig@commerzbank.com
|
DnB
NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Email:
|
amra.koluder@dnbnor.no
|
22
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 4466/ 2944
|
|
Attn:
|
Mr Stephan Pueschel
|
|
Email:
|
stephan.pueschel@kfw.de
|
|
|
christian.schweiger@kfw.de
|
HSBC BANK PLC
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
And each other
Secured Creditor under and as defined in the Credit Agreement.
23
Schedule 5
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
NORWEGIAN JEWEL LIMITED.
of International House, Castle Hill, Victoria Road, Douglas, Isle of Man, IM2 4RB, British Isles, the
owners of the motor vessel “NORWEGIAN JEWEL” (Official Number 8000877) (the “
Vessel
”) hereby give notice that by a fourth assignment dated 2010
entered into by us with
KFW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for certain secured parties (the “
Assignee
”) and in consideration of (a) certain secured parties making
certain facilities available to the Assignor pursuant to a credit agreement, any interest rate protection agreement and/or any other hedging agreement, (b) payment by the Assignee to us of ten Dollars (USD10) and (c) other good and
valuable consideration from the Assignee to us (the adequacy and receipt whereof we hereby acknowledge), and as security for payment of the obligations under the credit document and related agreements, we have assigned, and granted a fourth priority
security interest in and to, absolutely all our right and title to and interest in all insurances in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed.
Please note that this Notice may not be revoked or varied without the prior written consent of the Assignee.
|
|
|
|
|
NORWEGIAN JEWEL LIMITED
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
Date:
|
|
2010
|
24
Schedule 6
To: [
—
]
as Assignee
Dated: 2010
Dear Sirs
m.v. “NORWEGIAN JEWEL”
(Official Number 8000877) (the “Vessel”)
Norwegian Jewel Limited. (the “Assignor”)
We confirm that we have effected insurances for the account of the Assignor as set out in Appendix “A” attached.
Pursuant to instructions received from the Assignor and/or their authorised managers or agents and in consideration of your approving us as the appointed
brokers in connection with the insurances covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Appendix “B” attached; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment in the form of Appendix “C” hereto dated and signed by the
Assignor and acknowledged by underwriters in accordance with market practice; and
|
|
4.
|
to advise you promptly if we cease to be the brokers for the Assignor or in the event of any material changes of which we are aware affecting the said insurance; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Assignor and/or their authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof;
and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
|
25
|
8.
|
not to change the effectiveness of the assignment to the assignee of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Assignee.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the said Notice of Assignment, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a
collision and/or salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid
and the guarantor has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this
undertaking shall be submitted to the exclusive jurisdiction of the English courts.
This undertaking is subject to all claims and returns of
premiums being collected through us as brokers.
Yours faithfully
26
Appendix A to letter of undertaking
Details of insurances
27
Appendix B to letter of undertaking
Loss Payable Clause
It
is noted that by a fourth assignment in writing dated 2010 the shipowner
NORWEGIAN JEWEL LIMITED
(the “
Assignor
”) has assigned to
KFW IPEX-BANK
GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee (the “
Assignee
”) all the Assignor’s right, title, benefits and interests in this policy and all benefits hereof including all claims of whatsoever
nature hereunder. All claims in respect of a total or constructive total or an arranged or agreed or compromised total loss or requisition of the Vessel shall be paid to the Assignee. All other claims payable either in respect of a major casualty
(that is to say any casualty in respect whereof the claim or the aggregate of the claims exceeds [*] shall be paid to the Assignor or its order, subject to the prior written consent of the Assignee. All other claims, unless and until the
underwriters have received notice from the Assignee of a default under the mortgage dated 2010, in which event all claims under this policy of Insurance shall be payable direct
to the Assignee, shall be released directly for the repair, salvage or other charges involved or, if the Assignor has paid such charges, in reimbursement thereof to the Assignor. Please note that this Notice may not be revoked or varied without the
prior written consent of the Assignee.
28
Appendix C to letter of undertaking
Notice of Assignment
(for attachment by way of endorsement to the Policy)
We,
NORWEGIAN JEWEL LIMITED
of
International House, Castle Hill, Victoria Road, Douglas, Isle of Man, IM2 4RB, British Isles, the owners of the motor vessel “NORWEGIAN JEWEL” (Official Number 8000877) (the “
Vessel
”) hereby give notice that by a fourth
assignment dated 2010 entered into by us with
KFW IPEX-Bank GmbH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main,
Germany as trustee for certain secured parties (the “
Assignee
”) and in consideration of (a) certain secured parties making certain facilities available to the Assignor pursuant to a credit agreement, any interest rate
protection agreement and/or any other hedging agreement, (b) payment by the Assignee to us of ten Dollars (USD10) and (c) other good and valuable consideration from the Assignee to us (the adequacy and receipt whereof we hereby
acknowledge), and as security for payment of the obligations under the credit document and related agreements, we have assigned, and granted a fourth priority security interest in and to, absolutely all our right and title to and interest in all
insurances in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed.
|
|
|
|
|
NORWEGIAN JEWEL LIMITED
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
Date:
|
|
2010
|
29
Schedule 7
To: [
—
]
as trustees (the
“
Assignee
”)
Dated:
2010
Dear Sirs
m.v. “NORWEGIAN JEWEL” (Official Number 8000877) (the “Vessel”)
Norwegian Jewel Limited. (the “Assignor”)
We acknowledge receipt of notice of
an assignment to the Assignee of the insurances on the Vessel. So far as [
] (the “
Association
”) is concerned, the managers do not
consent to such assignment for the purposes of Rule [ ], other than to give efficacy to the Loss Payable Clause set out below and subject always to the Association’s right under Rule
[ ].
We do confirm however that the Vessel is entered in this Association for Protection and
Indemnity risks on the terms and conditions set out or to be set out in the Certificate of Entry. Furthermore, in consideration of your agreeing to the entry or continuing entry of the Vessel in this Association, the managers agree:
|
1.
|
that the Assignor shall not cease to be insured by the Association in respect of the Vessel by reason of such assignment (see Rule
[ ]); and
|
|
2.
|
that, notwithstanding that the Vessel is mortgaged to the Assignee and that no undertaking or guarantee has been given to the Association to pay all contributions due
in respect of the Vessel, the Assignor do not cease to be insured by reason of the operation of Rule [ ].
|
It is further agreed that the following Loss Payable Clause will be included in the Certificate of Entry:
“Payment of any recovery the Assignor are entitled to make out of the funds of the Association in respect of any liability, cost or expense incurred by them shall be made to the Assignor or their
order unless and until the Association receives notice to the contrary from [
—
] as trustees pursuant to an assignment of insurances over the vessel “NORWEGIAN JEWEL” dated
2010 stating that a default has occurred under the Mortgage dated 2010, in which event all recoveries
shall thereafter be paid to the said [
—
] as trustees or their order; provided always that no liability whatsoever shall attach to the Association, its Managers or their Agents for failure to comply
with the latter obligation until after the expiry of two (2) clear business days from the receipt of such notice.”
The Association
undertakes:
|
1.
|
to inform you if the directors give the Assignor notice under Rule [ ] that their insurance in the Association in respect
of the Vessel is to cease at the end of the then current policy year;
|
30
|
2.
|
to give you ten (10) days’ notice of the Association’s intention to cancel the insurance of the Assignor by reason of their failure to pay when due and
demanded any sum due from them to the Association.
|
Yours faithfully
31
EXHIBIT H
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED
2010
NORWEGIAN JEWEL LIMITED
(as owner)
to
KFW IPEX-BANK GMBH,
(as mortgagee)
d
FORM OF FOURTH DEED OF COVENANTS
m.v. “NORWEGIAN JEWEL”
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
1
|
|
Definitions
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Owner’s Covenant to Pay
|
|
|
5
|
|
|
|
|
|
|
3
|
|
Mortgage
|
|
|
5
|
|
|
|
|
|
|
4
|
|
Owner’s Covenants
|
|
|
5
|
|
|
|
|
|
|
5
|
|
Owner’s Insurance Covenants
|
|
|
5
|
|
|
|
|
|
|
6
|
|
Owner’s Covenants as to Operation and Maintenance
|
|
|
10
|
|
|
|
|
|
|
7
|
|
Protection and Maintenance of Security
|
|
|
16
|
|
|
|
|
|
|
8
|
|
Mortgagee’s Powers
|
|
|
16
|
|
|
|
|
|
|
9
|
|
Ancillary Provisions
|
|
|
18
|
|
|
|
|
|
|
10
|
|
Receiver
|
|
|
18
|
|
|
|
|
|
|
11
|
|
Appropriation
|
|
|
19
|
|
|
|
|
|
|
12
|
|
Power of Attorney
|
|
|
19
|
|
|
|
|
|
|
13
|
|
Further Assurance
|
|
|
20
|
|
|
|
|
|
|
14
|
|
Discharge of Security
|
|
|
20
|
|
|
|
|
|
|
15
|
|
Notices
|
|
|
20
|
|
|
|
|
|
|
16
|
|
Governing Law and Submission to Jurisdiction
|
|
|
20
|
|
|
|
|
|
|
17
|
|
Miscellaneous
|
|
|
21
|
|
|
|
|
|
Schedule 1
|
|
|
26
|
|
|
|
|
|
Schedule 2
|
|
|
29
|
|
|
|
|
|
Schedule 3
|
|
|
36
|
|
|
|
|
|
Schedule 4
|
|
|
40
|
|
i
DEED OF COVENANTS
Dated
2010
BETWEEN
|
(1)
|
NORWEGIAN JEWEL LIMITED.
an Isle of Man corporation and having its registered office at International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2
4RB, British Isles (the
“Owner”
); and
|
|
(2)
|
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany, acting not in its own individual capacity but solely as trustee and collateral
agent for the Beneficiaries pursuant to the Security Trust Deed and the Credit Agreement (the
“Mortgagee”
).
|
WHEREAS
:
|
(A)
|
The Owner is the absolute legal and beneficial owner of all the sixty four sixty fourth
(64/64
th
) shares of and in the motor vessel
“NORWEGIAN JEWEL” registered in the name of the Owner under the Bahamian flag at the port of Nassau with Official Number 8000877.
|
|
(B)
|
Pursuant to a first priority mortgage over the Vessel dated 4 August 2005 covering 64/64
th
of the Vessel (the
“First Mortgage”
) the Owner mortgaged the whole of the Vessel upon the terms and
conditions contained therein to HSBC Bank Plc of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the
“First Mortgagee”
).
|
|
(C)
|
Pursuant to a second priority mortgage over the Vessel dated 2 April 2009 covering 64/64
th
of the Vessel (the
“Second Mortgage”
) the Owner mortgaged the whole of the Vessel upon the terms and
conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway, as trustee for itself and the parties set out in Schedule 2 (the
“Second Mortgagee”
).
|
|
(D)
|
Pursuant to a third priority mortgage over the Vessel dated 2 April 2009 covering 64/64
th
of the Vessel (the
“Third Mortgage”
) the Owner mortgaged the whole of the Vessel upon the terms
and conditions contained therein to DnB NOR Bank ASA acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and for the parties set out in Schedule 3 (the
“Third Mortgagee”
).
|
|
(E)
|
Pursuant to the Credit Agreement, and in consideration of the obligations of the Beneficiaries (as defined below) under or pursuant to the Junior Finance Documents, the
Owner has executed and delivered in favour of the Mortgagee a fourth priority Bahamian statutory mortgage and has agreed to enter into this Deed to mortgage and charge the Mortgaged Premises in favour of the Mortgagee as trustee for itself and the
Beneficiaries as security for the repayment of the Secured Obligations (as defined below).
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|
(F)
|
By a deed of co-ordination dated as of the date hereof (the
“Fourth Priority Security Co-ordination Deed”
) made between (among others)
(1) the First Mortgagee, (2) the Second Mortgagee, (3) the Third Mortgagee and (4) the Mortgagee the parties have
|
|
|
agreed (among other things) as to how the provisions of Clause 11 shall operate. Further by the Fourth Priority Security Co-ordination Deed it has been agreed that the benefit of this Mortgage
shall be held by the Mortgagee on trust for itself and the Secured Creditors, including the Secured Creditors set out in Schedule 4, and its and their respective successors, assignees and transferees (together the
“Beneficiaries”
).
|
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED
as follows:
In this Deed
the following terms shall have the meanings set out below; in addition, defined terms and expressions used but not defined herein and whose meanings are defined in the Credit Agreement shall have the same meanings when used in this Deed. The
headings used in this Deed are for reference only, and have no legal or other significance, and shall be ignored in the interpretation of this Deed.
“Annex VI”
means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in
1978 and 1997) (as the same may be amended from time to time);
“Assigned Property”
means the Insurances, the
Earnings and the Requisition Compensation;
“Compulsory Acquisition”
means requisition for title or other
compulsory acquisition of the Vessel including its capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or
purporting to act on behalf of any such government or governmental authority or agency;
“Compulsory Acquisition
Compensation”
means all moneys or other compensation whatsoever payable by reason of the Compulsory Acquisition of the Vessel (otherwise than by requisition for hire);
“
Credit Agreement
”
means that certain €126,075,000 Credit Agreement dated November [
—
], 2010, among NCL Corporation
Ltd., as parent (the “Parent”), the Owner, as borrower, various lenders from time to time party thereto (the “Lenders”), the Mortgagee, as facility agent and collateral agent, Nordea Bank Norge ASA, as documentation agent,
Commerzbank AG, as Hermes agent, and other parties thereto, as amended, novated and/or restated or otherwise modified from time to time.
“Document of Compliance”
means a document issued to a vessel operator as evidence of its compliance with the requirements of the ISM Code;
“Earnings”
means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire and passage
monies, proceeds of requisition (other than proceeds of Compulsory Acquisition), rebates and commissions, all earnings deriving from contracts of affreightment, pooling agreements, joint ventures, compensation, remuneration for salvage and towage
services, damages howsoever arising and detention monies, damages for breach of any charterparty or other contract for the employment of the Vessel, any amounts payable in consideration of the termination or variation of any charterparty or other
such contract, any reduction in the Hermes Premium repaid by Hermes to the Owner and any other earnings whatsoever due or to become due to the Owner;
2
“Event of Default”
has the meaning ascribed to it in the Credit Agreement;
“IAPPC”
means an international air pollution prevention certificate issued under Annex VI;
“Insurances”
means all policies and contracts of insurance of the Vessel and entries of the Vessel in a protection and
indemnity or war risks association which are effected in respect of the Vessel, its freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all compensation
payable by virtue of Compulsory Acquisition of the Vessel;
“ISM Code”
means the International Management Code
for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation;
“ISPS
Code”
means the International Ship and Port Facility Security Code adopted by the International Maritime Organisation;
“ISSC”
means an international ship security certificate issued for a vessel under the ISPS Code;
“
Junior Finance Documents
” means the “Credit Documents”, as such term is defined in the Credit Agreement;
“Lender Creditors
”
means the Lenders and the Agents under the Credit Agreement, each in their
respective capacities.
“the Manager”
means NCL (Bahamas) Ltd.;
“the Mortgaged Premises”
includes:
|
|
(b)
|
the Compulsory Acquisition Compensation;
|
“
Obligors
” means the Credit Parties, as such term is defined in the Credit Agreement;
“Other Creditors”
means any Lender or any affiliate thereof and their successors, transferees and assigns if any (even if such Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason), together with such Lender’s or affiliate’s successors, transferees and assigns, with which the Parent and/or the Owner enters into any Interest Rate Protection Agreements or Other Hedging Agreements from time to
time.
“person”
includes any body of persons;
“Requisition Compensation”
means all compensation or other money which may from time to time be payable to the Owner as a
result of the Compulsory Acquisition of the Vessel;
3
“Safety Management Certificate”
means a document issued to a vessel as
evidence that the vessel operator and its shipboard management operate in accordance with an approved Safety Management System;
“Safety Management System”
means a structured and documented system enabling the personnel of a vessel operator to
implement effectively the safety and environmental protection policy of such vessel operator;
“
Secured
Creditors
”
means collectively (i) the Lender Creditors and (ii) the Other Creditors;
“
Secured Obligations
”
has the meaning ascribed to such term in the Credit Agreement;
“
Security Documents
”
has the meaning ascribed to such term in the Credit Agreement;
“Security Period”
means the period beginning on the date of this Deed and ending on the date when the whole of the
Secured Obligations have been repaid in full and the Owner has ceased to be under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense
reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) under or in connection with any of the Security Documents;
“Security Trust Deed
”
means the Security Trust Deed executed on or about the date hereof by, inter alia, the Owner, the Guarantor, the Mortgagee, the Original Secured Creditors (as
defined therein) and the Original Term Hedging Creditors (as defined therein).
“Senior Loan Agreement”
means
the document referred to in Schedule 1;
“Senior Security Documents”
means the documents listed in schedule 1,
schedule 2 and schedule 3 of the Fourth Priority Security Co-ordination Deed and any other document which may at any time be executed by any person as security for the payment of all or any part of the Senior Indebtedness (as defined in the Fourth
Priority Security Co-ordination Deed);
“Total Loss”
means any actual or constructive or arranged or agreed or
compromised total loss or Compulsory Acquisition of the Vessel; and
“Vessel”
means the motor vessel more
particularly described in Recital (A) hereto and includes any share or interest therein and its engines, machinery, boats, tackle, outfit, spare gear, fuel, consumable or other stores, belongings and appurtenances whether on board or ashore and
whether now owned or hereafter acquired;
“war risks”
includes the risks of mines and all risks excluded from
the standard form of English marine policy by the free of capture and seizure clause.
4
|
2
|
Owner’s Covenant to Pay and Perform
|
The Owner covenants with the Mortgagee to discharge the Secured Obligations on demand from time to time in accordance with the Credit Agreement, and to pay all other sums at any time due under or pursuant
to the Junior Finance Documents in each case at the times and in the manner provided therein and to perform all its other obligations arising out of the Junior Finance Documents as and when the same shall be due for performance.
|
|
3.1
|
By way of security for the payment of the Secured Obligations and the performance and observance of and compliance with the covenants, terms and conditions contained in
any of the Junior Finance Documents, the Owner with full title guarantee hereby mortgages and charges to and in favour of the Mortgagee all its interest, present and future, in the Mortgaged Premises (which the Owner hereby warrants to be free at
the date hereof from any other charge or encumbrance whatsoever other than the First Mortgage, the Second Mortgage and the Third Mortgage).
|
|
|
3.2
|
It is declared and agreed that the Security Documents shall be held by the Mortgagee as a continuing security for the payment of the Secured Obligations and that the
security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the amount hereby and thereby secured and that the security so created shall be in addition to and shall not in any way be prejudiced or affected
by any collateral or other security now or hereafter held by the Mortgagee for all or any part of the moneys hereby and thereby secured and that every power and remedy given to the Mortgagee hereunder shall be an addition to and not a limitation of
any and every other power or remedy vested in the Mortgagee under any of the other Security Documents and that all the powers so vested in the Mortgagee may be exercised from time to time and as often as the Mortgagee may deem expedient.
|
|
|
4.1
|
The Owner covenants with the Mortgagee to insure the Vessel in accordance with Clause 5 throughout the Security Period.
|
|
|
4.2
|
The Owner covenants with the Mortgagee to operate and maintain the Vessel in accordance with Clause 6 and in particular but without limitation not to create or permit
to subsist any Liens on the whole or any part of the Assigned Property except for the First Mortgage, the Second Mortgage and the Third Mortgage and any Liens created with the prior consent of the Mortgagee or Permitted Liens.
|
|
5
|
Owner’s Insurance Covenants
|
|
|
5.1
|
The Owner covenants with the Mortgagee and undertakes throughout the Security Period:
|
|
|
5.1.1
|
to insure the Vessel, or to procure that the Vessel is insured, in its name and keep the Vessel and procure that the Vessel is kept insured on an
agreed value basis for an amount in Dollars as approved by the Mortgagee
|
5
|
|
provided that the insured value of the Vessel shall at all times be equal to or greater than [*] of the Total Commitment under the Credit Agreement, and the hull and machinery insured value for
the Vessel to be at all times equal to no less than [*] of the total insured value of the Vessel and [*] of the total insured value of the Vessel shall consist of hull interest and freight interest insurance through internationally recognised
independent first class insurance companies, underwriters, war risks and protection and indemnity associations reasonably acceptable to the Mortgagee in each instance on terms and conditions approved by the Mortgagee (with such approval not to be
unreasonably withheld) including as to deductibles but at least in respect of:
|
|
|
(1)
|
marine risks including all risks customarily and usually covered by first-class and prudent shipowners in the London insurance markets under English marine policies or
the Norwegian Plan or Mortgagee-approved policies containing the ordinary conditions applicable to similar vessels;
|
|
|
(2)
|
war risks including the Missing Vessel Clause, terrorism, piracy and confiscation, and, should Institute War and Strike Clauses, Hulls Conditions prevail, the London
Blocking and Trapping Addendum and war risks (protection and indemnity) with a separate limit and in excess of the amount for war risks (hull);
|
|
|
(3)
|
excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not recoverable in consequence of the
value at which the Vessel is assessed for the purpose of such claims exceeding the insured value;
|
|
|
(4)
|
protection and indemnity risks with full standard coverage and up to the highest limit of liability available (for oil pollution risk the highest limit currently
available is [*] for pollution risk and this to be increased if requested by the Mortgagee and the increase is possible in accordance with the standard protection and indemnity cover for vessels of her type and is compatible with prudent insurance
practice for first class cruise shipowners or operators in waters where the Vessel trades from time to time during the Security Period);
|
|
|
(5)
|
when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks;
|
|
|
(6)
|
such other risks as the Mortgagee may from time to time reasonably require;
|
and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in respect of similar tonnage
PROVIDED THAT
if
any of such insurances are also effected in the name of any other person (other than
6
the Owner or the Mortgagee) such person shall if so required by the Mortgagee execute a preferred assignment of its interest in such insurances in favour of the Mortgagees in similar terms
mutatis mutandis to the Assignment of Insurances (as defined in the Credit Agreement)
PROVIDED FURTHER THAT
the Owner has first obtained the consent of the First Mortgagee, the Second Mortgagee and the Third Mortgagee to such an assignment;
|
|
5.1.2
|
the Mortgagee at the cost of the Owner or the Parent shall take out, in each case, for an amount in Dollars approved by the Mortgagee but not being, collectively, less
than [*] of the then applicable Total Commitment, mortgagee interest insurance and mortgagee additional perils insurance for pollution risks on such conditions as the Mortgagee may reasonably require, the Parent and the Owner having no interest or
entitlement in respect of such policies; the Mortgagee undertakes to use its reasonable endeavours to match the premium level that the Parent or the Owner would have paid if they had arranged such cover on such conditions (as demonstrated to the
reasonable satisfaction of the Mortgagee);
|
|
|
5.1.3
|
if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the
“EEZ”
) as such term
is defined in the US Oil Pollution Act 1990 (
“OPA”
), to comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may
or will trade at any time during the existence of this Deed and in particular before such trade is commenced and during the entire period during which such trade is carried on:
|
|
|
(a)
|
to pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Vessel in the market;
|
|
|
(b)
|
to make all such quarterly or other voyage declarations as may from time to time be required by the Vessel’s protection and indemnity association and to comply
with all obligations in order to maintain such cover, and promptly to deliver to the Mortgagee copies of such declarations;
|
|
|
(c)
|
to submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by the Vessel’s protection and indemnity
insurers to maintain cover for such trade and promptly to deliver to the Mortgagee copies of reports made in respect of such surveys;
|
|
|
(d)
|
to implement any recommendations contained in the reports issued following the surveys referred to in sub-clause (c) above within the time limit specified therein
and to provide evidence satisfactory to the Mortgagee that the protection and indemnity insurers are satisfied that this has been done;
|
7
|
|
(e)
|
in particular strictly to comply with the requirements of any applicable law, convention, regulation, proclamation or order with regard to financial responsibility for
liabilities imposed on the Owner or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and to provide the Mortgagee on demand with such information or evidence as it may
reasonably require of such compliance;
|
|
|
(f)
|
to procure that the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ
or any other provision analogous thereto and to provide the Mortgagee with evidence that this is so; and
|
|
|
(g)
|
strictly to comply with any operational or structural regulations issued from time to time by any relevant authorities under OPA so that at all times the Vessel falls
within the provisions which limit strict liability under OPA for oil pollution;
|
|
|
5.1.4
|
to give notice forthwith of any assignment and/or transfer of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or
associations in the form reasonably approved by the Mortgagee;
|
|
|
5.1.5
|
to execute and deliver all such documents and do all such things as may be necessary to confer upon the Mortgagee legal title to the Insurances in respect of the Vessel
and to procure that the interest of the Mortgagee is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable clause in the form reasonably approved by the Mortgagee and exceeding
[*] shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form reasonably approved by the Mortgagee and exceeding [*] shall be endorsed upon the
protection and indemnity certificates of entry in respect of the Vessel;
|
|
|
5.1.6
|
to cause such insurance broker and the P & I club or association providing P & I insurance to agree to advise the Mortgagee by telex or
telecopier confirmed by letter of any expiration, termination, alteration or cancellation of any policy, any default in the payment of any premium and of any other act or omission on the part of the Owner of which it has knowledge and which might
invalidate or render unenforceable, in whole or in part, any insurance on the Vessel, and to provide an opportunity of paying any such unpaid premium or call, such right being exercisable by the Mortgagee on a vessel by vessel and not on a fleet
basis. In addition, the Parent or the Owner shall promptly provide the Mortgagee with any information which the Mortgagee reasonably requests for the purpose of obtaining or preparing any report from an independent marine insurance consultant as to
the adequacy of the insurances effected or proposed to be effected in accordance with the provisions contained herein and in the Credit Agreement as of the date hereof or in connection with any renewal thereof, and the Owner shall upon demand
indemnify the Mortgagee in respect of
|
8
|
|
all reasonable fees and other expenses incurred by or for the account of the Mortgagee in connection with any such report; provided the Mortgagee shall be entitled to such indemnity only for one
such report during any period of twelve months.
|
|
|
5.1.7
|
to procure that each of the relevant brokers and associations furnish the Mortgagee with a letter of undertaking in such usual form as may be reasonably required by the
Mortgagee and waives any lien for premiums or calls except in relation to premiums or calls attributable to the Vessel;
|
|
|
5.1.8
|
punctually to pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce all relevant receipts when so
required by the Mortgagee;
|
|
|
5.1.9
|
to renew each of the Insurances on the Vessel at least [*] days before the expiry thereof and to give immediate notice to the Mortgagee of such renewal and to procure
that the relevant brokers or associations shall promptly confirm in writing to the Mortgagee that such renewal is effected it being understood by the Owner that any failure to renew the Insurances on the Vessel at least [*] days before the expiry
thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default;
|
|
|
5.1.10
|
to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war risks association;
|
|
|
5.1.11
|
to furnish the Mortgagee from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies,
underwriters, associations or clubs with which such Insurances are placed;
|
|
|
5.1.12
|
not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Mortgagee (which approval shall not be unreasonably
withheld) (save in circumstances where the variation is imposed by the insurers or reinsurers without requiring the Owner’s consent in which case the Owner shall notify the Mortgagee of such variation in a timely manner) nor to do any act or
voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not
permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose. If a
variation in the terms of the Insurances is imposed as aforesaid and in the absolute opinion of the Mortgagee its interest in the Insurances is thereby materially adversely affected and/or the proceeds of the Insurances payable to the Mortgagee
would be adversely affected, the Owner undertakes promptly to make such changes to the Insurances, or such alternative Insurance arrangements, provided that such alternative Insurance arrangements are available in the insurance market to the Owner
at that time, as the Mortgagee shall reasonably require;
|
9
|
|
5.1.13
|
not without the prior written consent of the Mortgagee to settle, compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim
of less than [*] or the equivalent in any other currency and not being a claim arising out of a Total Loss;
|
|
|
5.1.14
|
promptly to furnish the Mortgagee with full information regarding any casualties or other accidents or damage to the Vessel involving an amount in excess of [*];
|
|
|
5.1.15
|
to apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all
damage in respect whereof the insurance moneys shall have been received; and
|
|
|
5.1.16
|
that in the event of the Owner defaulting in insuring and keeping insured the Vessel as hereinbefore provided then the Mortgagee may (but shall not be bound to) insure
the Vessel or enter the Vessel in such manner and to such extent as the Mortgagee in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with Interest thereon shall be paid on demand by the
Owner to the Mortgagee.
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6
|
Owner’s Covenants as to Operation and Maintenance
|
|
|
6.1
|
The Owner covenants with the Mortgagee and undertakes throughout the Security Period at the Owner’s own expense that it will in respect of the Vessel:
|
|
|
6.1.1
|
keep her in a good and efficient state of repair so as to maintain her to the highest classification available for a vessel of her age and type free of all
recommendations and qualifications with Det Norske Veritas or such other classification society acceptable to the Mortgagee (acting on the instructions of the Required Lenders). On the date hereof and annually thereafter, it will furnish to the
Mortgagee a statement by such classification society that such classification is maintained. It will comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on
board as and when required thereby valid certificates showing compliance therewith and shall procure that all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of
materials) so as not to diminish the value or class of the Vessel. It will not make any substantial modifications or alterations to the Vessel or any part thereof without the prior consent of the Mortgagee;
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|
|
6.1.2
|
submit her to continuous survey in respect of her machinery and hull and such other surveys as may be required for classification purposes and, if so required by the
Mortgagee, supply to the Mortgagee copies in English of the survey reports;
|
10
|
|
6.1.3
|
permit surveyors or agents appointed by the Mortgagee to board the Vessel at all reasonable times to inspect her condition or satisfy themselves as to repairs proposed
or already carried out and afford all proper facilities for such inspections;
|
|
|
6.1.4
|
comply, or procure that the Manager will comply, with the ISM Code or any replacement of the ISM Code and in particular, without prejudice to the generality of the
foregoing, as and when required to do so by the ISM Code and at all times thereafter:
|
|
|
(a)
|
hold, or procure that the Manager holds, a valid Document of Compliance duly issued to the Owner or the Manager (as the case may be) pursuant to the ISM Code and a
valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code;
|
|
|
(b)
|
provide the Mortgagee with copies of any such Document of Compliance and Safety Management Certificate as soon as the same are issued; and
|
|
|
(c)
|
keep, or procure that there is kept, on board the Vessel a copy of any such Document of Compliance and the original of any such Safety Management Certificate;
|
|
|
6.1.5
|
comply, or procure that the Manager will comply, with the ISPS Code or any replacement of the ISPS Code and in particular, without limitation:
|
|
|
(a)
|
procure that the Vessel and the company responsible for the Vessel’s compliance with the ISPS Code comply with the ISPS Code;
|
|
|
(b)
|
maintain for the Vessel throughout the Security Period a valid and current ISSC; and
|
|
|
(c)
|
provide the Mortgagee with a copy of any such ISSC as soon as the same is issued;
|
|
|
6.1.6
|
comply, or procure that the Manager will comply, with Annex VI or any replacement of Annex VI and in particular, without limitation, to:
|
|
|
(a)
|
procure that the Vessel’s master and crew are familiar with, and that the Vessel complies with, Annex VI;
|
|
|
(b)
|
maintain for the Vessel throughout the Security Period a valid and current IAPPC and provide a copy to the Mortgagee; and
|
|
|
(c)
|
notify the Mortgagee immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC;
|
11
|
|
6.1.7
|
not employ the Vessel or permit her employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or
prohibited goods or in any manner whatsoever which may render her liable to condemnation in a prize court or to destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world
(whether war be declared or not) it will not employ the Vessel or permit her employment in carrying any contraband goods;
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|
|
6.1.8
|
promptly provide the Mortgagee with:
|
|
|
(a)
|
all information which the Mortgagee may reasonably require regarding the Vessel, her employment, earnings, position and engagements;
|
|
|
(b)
|
particulars of all towages and salvages; and
|
|
|
(c)
|
copies of all charters and other contracts for her employment and otherwise concerning her;
|
|
|
6.1.9
|
give notice to the Mortgagee promptly and in reasonable detail upon any Obligor becoming aware of:
|
|
|
(a)
|
accidents to the Vessel involving repairs the cost of which will or is likely to exceed [*];
|
|
|
(b)
|
the Vessel becoming or being likely to become a Total Loss or a Compulsory Acquisition;
|
|
|
(c)
|
any recommendation or requirement made by any insurer or classification society or by any competent authority which is not complied with within any time limit relating
thereto;
|
|
|
(d)
|
any writ or claim served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, her Earnings or Insurances;
|
|
|
(e)
|
the occurrence of any Event of Default;
|
|
|
(f)
|
the Vessel ceasing to be registered as a Bahamas vessel or anything which is done or not done whereby such registration may be imperilled;
|
|
|
(g)
|
it becoming impossible or unlawful for it to fulfil any of its obligations under the Security Documents; and
|
|
|
(h)
|
anything done or permitted or not done in respect of the Vessel by any person which is likely to imperil the security created by the Security Documents;
|
12
|
|
6.1.10
|
promptly pay and discharge all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel
and keep proper books of account in respect thereof
PROVIDED ALWAYS
that the Owner shall not be obliged to compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of
any such contested debt, damage or liability which, either individually or in aggregate exceeds [*] shall forthwith be provided to the Mortgagee. As and when the Mortgagee may so require it will make such books available for inspection on behalf of
the Mortgagee and provide evidence satisfactory to the Mortgagee that the wages and allotments and the insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crew’s wages in respect of any
tax liability are being properly accounted for and that the master has no claim for disbursements other than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection;
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|
|
6.1.11
|
maintain the type of the Vessel as at the date hereof and not put the Vessel into the possession of any person without the prior consent of the Mortgagee for the
purpose of work being done on her in an amount exceeding or likely to exceed [*] unless such person shall first have given to the Mortgagee a written undertaking addressed to the Mortgagee in terms satisfactory to the Mortgagee agreeing not to
exercise a lien on the Vessel or her Earnings for the cost of such work or for any other reason;
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|
|
6.1.12
|
promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to
whose jurisdiction the Vessel may from time to time be subject
PROVIDED ALWAYS
THAT the Owner shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of any such
contested liabilities which, either individually or in aggregate, exceed [*] shall be forthwith provided to the Mortgagee. If the Vessel is arrested or detained for any reason it will procure the Vessel’s immediate release by providing bail or
taking such other steps as the circumstances may require;
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|
|
6.1.13
|
give to the Mortgagee at such times as it may from time to time require a certificate, duly signed on the Owner’s behalf as to the amount of any debts, damages and
liabilities relating to the Vessel and, if so required by the Mortgagee, forthwith discharge such debts, damages and liabilities to the Mortgagee’s satisfaction;
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|
|
6.1.14
|
maintain the registration of the Vessel as a Bahamas vessel and not do or permit anything to be done whereby such registration may be forfeited or imperilled;
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|
|
6.1.15
|
where the Vessel trades in the territorial waters of the United States of America, take all reasonable precautions to prevent any infringements of the
Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time hereafter)
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13
|
|
or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a
“Relevant Jurisdiction”
) and, for this purpose shall (inter alia)
enter into a “Carrier Initiative Agreement” with the United States’ Bureau of Customs and Border Protection (if such is possible) or into voluntary arrangements made under the Customs-Trade Partnership Against Terrorism of the United
States of America (if such is possible and appropriate to cruise vessels) and procure that the same (or a similar agreement or arrangement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by
it in respect of the Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading;
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|
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6.1.16
|
subject always to Permitted Chartering Arrangements under and as defined in the Credit Agreement, not enter into:
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|
|
(a)
|
any pooling agreement or other arrangement for the sharing of any of the Earnings or the expenses of the Vessel; or
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|
|
(b)
|
any demise or bareboat charter; or
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|
|
(c)
|
any charter whereunder two (2) months’ charterhire (or the equivalent thereof) is payable in advance in respect of the Vessel; or
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|
|
(d)
|
any charter of the Vessel or contract of affreightment which, with the exercise of options for extension, could be for a period longer than thirteen (13) months,
|
PROVIDED HOWEVER THAT
the Owner may in respect of the Vessel enter into a bareboat charter on arm’s
length terms and in form approved by the Mortgagee, with any company which is a member of the NCLC Group
PROVIDED THAT
if so requested by the Mortgagee, and without limitation:
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|
(1)
|
any such bareboat charterer shall enter into such deeds (including but not limited to a subordination and assignment deed), agreements and indemnities as the Mortgagee
shall in its absolute discretion require prior to entering into the bareboat charter with the Owner; and
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|
|
(2)
|
the Owner shall assign the benefit of any such bareboat charter and its interest in the Insurances to the Mortgagee by way of further security for the Owner’s and
the other Obligors’ obligations under the Security Documents;
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|
|
6.1.17
|
subject always to clause 10.14 of the Senior Loan Agreement referred to in Schedule 1, except with the prior consent of the Mortgagee (acting on the instructions of the
Required Lenders) not:
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|
|
(a)
|
permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel;
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14
|
|
(b)
|
permit any amendment to be made to the terms of the Management Agreement in respect of the Vessel unless the amendment is advised by the Owner’s tax counsel or is
deemed necessary by the parties thereto but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Junior
Finance Documents; or
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|
|
(c)
|
permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable);
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|
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6.1.18
|
perform its obligations under each charterparty or employment contract made in respect of the Vessel and take all necessary steps to procure the due performance of the
obligations of any party under any charterparty or contract. It will not without the prior written consent of the Mortgagee rescind, cancel or otherwise terminate any charterparty or contract in respect of the Vessel
PROVIDED ALWAYS THAT
any
determination by it of any such charterparty or contract after such consent is given shall be without responsibility on the part of the Mortgagee who shall be under no liability whatsoever in the event that such termination thereafter be adjudged to
constitute a repudiation of such charterparty or contract by the Owner;
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|
|
6.1.19
|
promptly notify the Mortgagee (a) of any default under any such charterparty or contract of which it has knowledge by it and/or by any other party under any other
such charterparty or contract (b) of any such charterparty or contract being frustrated or the performance thereof becoming impossible or substantially different from that contemplated originally by the parties thereto;
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|
|
6.1.20
|
institute and maintain all such proceedings as may be necessary or expedient to preserve or protect the interest of the Mortgagee as assignee and itself under any of
its charterparties or contracts made in respect of the Vessel;
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|
|
6.1.21
|
not take or omit to take any action the taking or omission of which might result in any material alteration or impairment of any charterparty or contract made in
respect of the Vessel;
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|
|
6.1.22
|
not substitute any other ship or ships for the Vessel under any charterparty or contract made in respect of the Vessel;
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|
|
6.1.23
|
not without the Mortgagee’s prior consent agree to any material variation, modification or amendment in the terms of any charterparty or contract in respect of the
Vessel or release any other party from any of their respective obligations thereunder or waive any breach of the obligations of any person or consent to any such act or omission of any person as would otherwise constitute such breach;
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15
|
|
6.1.24
|
not without the Mortgagee’s prior consent let or employ the Vessel below approximately the market rate prevailing when the Vessel is fixed; and
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|
|
6.1.25
|
procure that the Earnings (if any) are paid in full without set off and free and clear of and without deduction for any taxes, levies, duties, imposts, charges, fees,
restrictions or conditions of any nature whatsoever.
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|
7
|
Protection and Maintenance of Security
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|
|
7.1
|
The Mortgagee shall without prejudice to its other rights and powers hereunder be entitled (but not bound) at any time and as often as may be necessary to take any such
action as it may in its absolute discretion think fit for the purpose of protecting the security created by this Deed and the other Security Documents and each and every expense or liability so incurred by the Mortgagee in or about the protection of
the security shall be repayable by the Owner on demand for the charges and expenses (including the fees and expenses of legal advisers and value added tax or any similar tax thereon).
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|
|
7.2
|
Without prejudice to the generality of the foregoing:
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|
|
7.2.1
|
if any of the provisions of Clause 5 hereof shall no longer be in full force and effect the Mortgagee shall be at liberty to effect and thereafter to maintain all such
insurances upon the Vessel as it in its discretion may think fit;
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|
|
7.2.2
|
if any of the provisions of Clause 6.1.1 and 6.1.2 hereof are not complied with the Mortgagee shall be at liberty to arrange for the carrying out of such repairs and/or
surveys as it deems expedient or necessary; and
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|
|
7.2.3
|
if any of the provisions of Clause 6.1.10 hereof are not complied with the Mortgagee shall be at liberty to pay and discharge all such debts, damages and liabilities,
taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings as are therein mentioned and/or take any such measures as it deems expedient or necessary for the purpose of securing the release of the Vessel
|
and each and every expense or liability so incurred by the Mortgagee shall be recoverable from the Owner as provided in Clause 7.1.
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|
8.1
|
Subject always to the provisions of the Fourth Priority Security Co-ordination Deed, if an Event of Default shall occur and the Mortgagee shall demand
repayment of all or any part of the Secured Obligations, the security constituted by this Deed shall become immediately enforceable and at any time thereafter whilst such event shall be continuing the Mortgagee shall be entitled to exercise all or
any of the rights, powers, discretions or remedies vested in the Mortgagee by this Clause without any requirement for any court order or declaration that an
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16
|
|
Event of Default has occurred. The Mortgagee’s right to exercise those rights, powers, discretions and remedies shall be in addition to and without prejudice to all other rights, powers,
discretions and remedies to which they may be entitled, whether by law or otherwise. The Mortgagee shall be entitled to exercise their rights, powers, discretions and remedies despite any rule of law or equity to the contrary, and whether or not any
previous default shall have been waived, and in particular without any limitations imposed by law.
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|
|
8.2
|
In the circumstances described in Clause 8.1 and subject always to the provisions of the Fourth Priority Security Co-ordination Deed, the Mortgagee shall be entitled
(but not obliged) to:
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|
|
8.2.1
|
take possession of the Vessel wherever she be;
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|
|
8.2.2
|
discharge the master and crew of the Vessel and employ a new master and crew;
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|
|
8.2.3
|
navigate the Vessel to such places as the Mortgagee may decide or detain or lay up the Vessel;
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|
|
8.2.4
|
in the name of the Mortgagee or the name of the Owner, demand, sue for, receive and give a good receipt for all sums due to the Owner in connection with the Vessel and,
in the name of the Mortgagee or the name of the Owner or the name of the Vessel, commence such legal proceedings as they may consider appropriate, or conduct the defence of any legal proceedings commenced against the Vessel or the Owner in its
capacity as owner of the Vessel;
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|
|
8.2.5
|
sell or dispose of the Vessel either by private treaty or auction, on such terms as the Mortgagee shall think fit (including deferred payment terms and with or without
the benefit of any charterparty or other contract of employment), with the power to make a loan on such terms as the Mortgagee may decide to any prospective purchaser to assist in the purchase of the Vessel, and the power to postpone any sale,
without being liable for any loss caused by any such sale or the postponement of any such sale;
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|
|
8.2.6
|
replace or repair any part of the Vessel or alter it to suit the Mortgagee’s requirements and put it through all appropriate surveys;
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|
|
8.2.7
|
employ agents, servants and others on such terms as the Mortgagee may in their discretion determine;
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|
|
8.2.8
|
charter or load the Vessel on such terms and for the carriage of such passengers or cargoes as the Mortgagee may in their discretion determine.
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|
|
8.3
|
Whenever any right to enter and take possession of the Vessel accrues to the Mortgagee pursuant to Clause 8.2.1, they may require the Owner to deliver, and the Owner
shall on demand, at its own cost and expense, deliver to the Mortgagee the Vessel to a location designated by the Mortgagee as demanded.
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17
|
|
8.4
|
For the avoidance of doubt, if the Mortgagee takes any action or enters into or completes any transaction pursuant to Clause 8.2 after an Event of Default has been
remedied, that action or transaction shall not be affected by the remedying of the Event of Default.
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|
|
9.1
|
In connection with the exercise of its rights, powers, discretions and remedies under Clause 8 or otherwise as mortgagees of the Vessel and, subject always to the
provisions of the Fourth Priority Security Co-ordination Deed, the Mortgagee shall have power to buy in, rescind or vary any contract for sale of the Vessel and generally to do all things in connection with the sale of the Vessel as they shall think
fit.
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|
|
9.2
|
On any sale of the Vessel by the Mortgagee, the purchaser shall not be bound to enquire whether the Mortgagee’s power of sale has become exercisable or whether its
exercise has become expedient, and the purchaser shall not be affected by any notice that the sale was or may have been irregular in any way. The receipt of the Mortgagee for any amounts paid to them shall be a complete discharge to the purchaser
who shall not be concerned with the application of the payment or be answerable for any misapplication. As regards any purchaser, any such sale shall be deemed to be within the power of sale conferred on the Mortgagee by this Deed and at law and any
remedy of the Owner in respect of any irregularity or impropriety shall be in damages only.
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|
|
9.3
|
If the Mortgagee takes possession of the Vessel, until its sale the Mortgagee shall be entitled to deal with the Vessel in all respects as if they were the owners of
the Vessel.
|
Subject always
to the provisions of the Fourth Priority Security Co-ordination Deed:
|
|
10.1
|
at any time after the occurrence and during the continuation of an Event of Default the Mortgagee may (but shall not be obliged to) appoint any suitably experienced and
reputable person (in the opinion of the Mortgagee) to be receiver and/or manager of the Vessel and/or any of the Assigned Property;
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|
|
10.2
|
the appointment of a receiver and/or manager by the Mortgagee may be made in writing under the hand of any authorised signatory of the Mortgagee;
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|
|
10.3
|
the Mortgagee shall have the power to authorise any joint receiver and/or manager to exercise any or all of their powers independently of any other joint receiver
and/or manager;
|
|
|
10.4
|
the Mortgagee may at any time and from time to time remove any receiver and/or manager from office and appoint a replacement;
|
|
|
10.5
|
the Mortgagee shall have the power from time to time to fix the remuneration of any receiver and/or manager on the basis of charging from time to time adopted by him or
his firm and any receiver and/or manager shall not be limited to any maximum amount or rate specified by law;
|
18
|
|
10.6
|
any receiver and/or manager appointed pursuant to this Clause shall be the agent of the Owner and the Owner shall be solely responsible for his acts and defaults and
for the payment of his remuneration;
|
|
|
10.7
|
any receiver and/or manager appointed pursuant to this Clause shall have all the powers conferred on receivers and/or managers or administrative receivers by law
without any restriction, whether imposed by law or otherwise;
|
|
|
10.8
|
without limitation, any receiver and/or manager shall have power on behalf of the Owner (and at the Owner’s expense) to do or omit to do anything which the Owner
could do or omit to do in relation to the Vessel or any of the Assigned Property and may exercise all or any of the rights, powers, discretions and remedies conferred on the Mortgagee by the Security Documents or at law;
|
|
|
10.9
|
no receiver and/or manager shall be liable as mortgagee in possession to account or be liable for any loss on realisation of or any default of any nature in connection
with the Vessel or any of the Assigned Property, or the exercise of any of the rights, powers, discretions and remedies vested in the receiver and/or manager by virtue of the Security Documents or at law.
|
All
amounts received by the Mortgagee arising from the exercise by the Mortgagee of their rights, powers, discretions and remedies under or pursuant to this Mortgage (including, without limitation, all amounts received by the Mortgagee in connection
with the taking possession and/or sale of the Vessel, any chartering or other use of the Vessel by the Mortgagee, and any claims for damages or claims on any insurance received by the Mortgagee while in possession of or while chartering or using the
Vessel or any Compulsory Acquisition Compensation) shall be applied by the Mortgagee in accordance with clause 3 of the Fourth Priority Security Co-ordination Deed.
|
|
12.1
|
The Owner hereby irrevocably appoints the Mortgagee as its attorney for the duration of the Security Period for the purpose of doing in its name all acts which the
Owner itself could do in relation to the Vessel
PROVIDED HOWEVER
that such power shall not be exercisable by or on behalf of the Mortgagee until payment of the Secured Obligations shall have been demanded under Clause 8.
|
|
|
12.2
|
The exercise of such power by or on behalf of the Mortgagee shall not put any person dealing with the Mortgagee upon any enquiry as to whether payment of the Secured
Obligations has been demanded nor shall such person be in any way affected by notice that payment of the Secured Obligations has not been so demanded and the exercise by the Mortgagee of such power shall be conclusive evidence to such person of the
Mortgagee’s right to exercise the same.
|
19
|
|
12.3
|
The Owner hereby ratifies and confirms and agrees to ratify and confirm whatever an attorney appointed under this Clause 12 shall do in its capacity as such, to the
extent permissible hereunder.
|
The
Owner agrees that from time to time on the written request of the Mortgagee it will immediately execute and deliver to the Mortgagee all further documents which the Mortgagee may reasonably require for the purpose of perfecting or protecting the
security intended to be created by this Deed.
Following the repayment and termination in full of all Secured Obligations the Mortgagee will, at the cost of and on the request of the Owner, execute and deliver to the Owner a discharge of this Deed,
without recourse to any representation or warranty by or from the Mortgagee.
The provisions
of section 14.03 of the Credit Agreement shall (mutatis mutandis) apply to this Deed as if they were set out in full with references to this Deed substituted for references to the Credit Agreement.
|
16
|
Governing Law and Submission to Jurisdiction
|
|
|
16.1
|
This Deed and any non-contractual obligations arising from or in connection with it shall be governed by English law.
|
|
|
16.2
|
The courts of England have exclusive jurisdiction to settle any dispute:
|
|
|
16.2.1
|
arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed); or
|
|
|
16.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed,
|
(a “
Dispute
”). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 16.2 is for the benefit of the Mortgagee
only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions.
This Deed shall be governed by and construed in accordance with the Laws of England and for the exclusive benefit of the
Mortgagee the Owner hereby irrevocably submits to the jurisdiction of the High Courts of Justice in England. Such submission shall not limit the right of the Mortgagee to commence any proceedings relating to this Deed (in addition or alternatively)
in any other jurisdiction which the Mortgagee deems fit.
20
|
|
16.2.3
|
The Owner waives any objection which it may now or later have (whether on the ground of forum non conveniens or otherwise) to any proceedings relating to this Deed
being brought in the courts of England or in any court which is covered by Clause 16.2.
|
|
|
16.2.4
|
The Owner agrees to appoint an agent in London for the Service of Process for the duration of the Security Period.
|
|
|
16.2.5
|
A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Owner and may be enforced without review
in any other jurisdiction.
|
|
|
16.2.6
|
Nothing in this Clause 16 shall exclude or limit any right which the Mortgagee may have (whether under the laws of any country, an international convention or
otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
|
16.2.7
|
In this Clause
“judgment”
includes order, injunction, declaration and any other decision or relief made or granted by a court.
|
|
|
17.1
|
If at any time any provision of this Deed becomes invalid, illegal or unenforceable in any respect that provision shall be severed from the remainder and the validity,
legality and enforceability of the remaining provisions of this Deed shall not be affected or impaired in any way.
|
|
|
17.2
|
In the event of there being any conflict between this Deed and a Junior Finance Document, that Junior Finance Document shall prevail.
|
|
|
17.3
|
This Deed may be executed in any number of counterparts, each of which shall be original but which shall together constitute the same instrument.
|
|
|
17.4
|
All the covenants and agreements of the Owner in this Deed shall bind the Owner and its successors and permitted assignees and shall inure to the benefit of the
Beneficiaries.
|
|
|
17.5
|
The headings used in this Deed are for reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed.
|
|
|
17.6
|
The representations and warranties on the part of the Owner contained in this Deed shall survive the execution and registration of this Deed.
|
|
|
17.7
|
The Mortgagee and/or the other Beneficiaries may at any time and from time to time waive either unconditionally or on such terms and conditions as they consider
appropriate any breach of any of the Junior Finance Documents, or any of the Security Documents or the Fourth Priority Security Co-ordination Deed by any of the Obligors.
|
21
|
|
17.8
|
Any waiver by the Mortgagee or any of the other Beneficiaries of any of their or its rights, powers, discretions or remedies pursuant to the Credit Agreement, the
Security Documents or the Fourth Priority Security Co-ordination Deed or of any breach by any of the Obligors or any forbearance by the Mortgagee or any of the other Beneficiaries, or any time or other indulgence granted by the Mortgagee or any of
the other Beneficiaries to any of the Obligors, shall not in any way prejudice or affect the right of the Mortgagee and the other Beneficiaries to act strictly in accordance with their rights and powers under or pursuant to the Credit Agreement, the
Security Documents or the Fourth Priority Security Co-ordination Deed.
|
|
|
17.9
|
The Mortgagee and/or the other Beneficiaries may, without prejudice to their rights pursuant to this Deed, at any time and from time to time, and on such terms and
conditions as the Mortgagee and/or the other Beneficiaries may in their discretion determine, agree with the Obligors to vary or amend the Credit Agreement, or any of the Security Documents, or any document referred to in or related to the Credit
Agreement or any of the Security Documents (including for the avoidance of doubt the Fourth Priority Security Co-ordination Deed, or without notice to the Owner grant time or other indulgence to or compound with any other person liable (actually or
contingently) to the Mortgagee and/or the other Beneficiaries in respect of all or any part of the Secured Obligations, and may release or renew negotiable instruments and take and release securities and hold funds on realisation or suspense account
without affecting the liability of the Owner or the rights of the Mortgagee and the other Beneficiaries under or pursuant to the Credit Agreement, the Security Documents and the Fourth Priority Security Co-ordination Deed.
|
|
|
17.10
|
The Mortgagee or any of the other Beneficiaries may at any time and from time to time delegate to any person all or any of their rights, powers, discretions and
remedies pursuant to the Credit Agreement, the Security Documents and the Fourth Priority Security Co-ordination Deed on such terms as they may consider appropriate (including the power to sub-delegate).
|
|
|
17.11
|
Every right, power, discretion and remedy conferred on the Mortgagee and the other Beneficiaries under or pursuant to the Credit Agreement, the Security Documents and
the Fourth Priority Security Co-ordination Deed shall be cumulative and in addition to every other right, power, discretion or remedy to which the Mortgagee and the other Beneficiaries may at any time be entitled by law or in equity. The Mortgagee
and the other Beneficiaries may exercise each of their rights, powers, discretions and remedies as often and in such order as they deem appropriate. The exercise or the beginning of the exercise of any right, power, discretion or remedy shall not be
interpreted as a waiver of the right to exercise that or any other right, power, discretion or remedy either simultaneously or subsequently.
|
22
|
|
17.12
|
No failure or delay by the Mortgagee or any of the other Beneficiaries in exercising any of their rights, powers, discretions or remedies shall impair any such right,
power, discretion or remedy or be interpreted as a waiver of or acquiescence in any default on the part of the Owner, unless expressly agreed to do so by the Mortgagee in writing.
|
|
|
17.13
|
Subject to the provisions of the Fourth Priority Security Co-ordination Deed, no provision of the Credit Agreement, the Security Documents or the Fourth Priority
Security Co-ordination Deed shall in any way limit the rights, powers, discretions and remedies of the Mortgagee as mortgagees of the Vessel.
|
|
|
17.14
|
The Mortgagee shall not be concerned to enquire into the power of the Owner or any person purporting to act on behalf of the Owner even if the Owner or such person
shall have acted in excess of their powers or if their actions shall have been irregular, defective or informal, whether or not the Mortgagee had notice.
|
|
|
17.15
|
The security constituted by this Deed shall be continuing and shall not be satisfied by any intermediate payment or satisfaction until the Secured Obligations shall
have been repaid in full and neither the Mortgagee nor any of the other Beneficiaries shall be under any further actual or contingent liability to any third party in relation to the Vessel, the Assigned Property or any other matter referred to in
the Credit Agreement, the Security Documents or the Fourth Priority Security Co-ordination Deed. The security constituted by this Deed shall be in addition to any other security now or in the future held by the Beneficiaries or by the Mortgagee for
or in respect of the Secured Obligations, and shall not merge with or prejudice or be prejudiced by any such security or any other contractual or legal rights of the Mortgagee or the other Beneficiaries nor be affected by any irregularity, defect or
informality or by any release, exchange or variation of any such security.
|
|
|
17.16
|
If the Mortgagee takes any steps to exercise any of their rights, powers, remedies or discretions pursuant to this Deed and the result shall be adverse to the
Mortgagee, the Owner and the Mortgagee shall be restored to their former positions as if no such steps had been taken.
|
|
|
17.17
|
Neither the Mortgagee nor any agent or employee of the Mortgagee nor any receiver and/or manager appointed by the Mortgagee shall be liable for any losses which may be
incurred in or about the exercise of any of the rights, powers, discretions or remedies of the Mortgagee under or pursuant to this Deed nor liable as mortgagees in possession for any loss on realisation or for any neglect or default of any nature
for which mortgagees in possession might otherwise be liable, except for losses as a result of gross negligence or wilful misconduct on the part of a Trustee, its agent, employee, receiver or manager.
|
|
|
17.18
|
Any discharge, release or reassignment by the Mortgagee and/or the other Beneficiaries of any of the security constituted by, or any of the obligations of the Owner
contained in, the Credit Agreement or any of the Security Documents shall be (and be deemed always to have been) void if any act (including, without limitation, any payment) as a result of which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided by operation of any law.
|
23
|
|
17.19
|
If the Mortgagee (despite Clause 4.2) receives notice of any subsequent Lien affecting the Vessel or any of the Assigned Property, the Mortgagee may open a new account
in their books for the Owner and/or the Vessel. If the Mortgagee do not open such a new account, then (unless the Mortgagee give written notice to the contrary to the Owner) as from the time of receipt by the Mortgagee of notice of such subsequent
Lien, all payments made to the Mortgagee shall be treated as having been credited to a new account of the Owner and not as having been applied in reduction of the Secured Obligations.
|
|
|
17.20
|
The rights of the Mortgagee under this Deed shall not be affected by any change in the constitution of the Owner or by the liquidation, bankruptcy or insolvency of the
Owner.
|
|
|
17.21
|
No variation or amendment of this Deed shall be valid unless in writing and signed on behalf of the Owner and the Mortgagee.
|
|
|
17.22
|
Notwithstanding anything to the contrary contained in this Deed, it is intended that nothing in this Deed shall waive the preferred status of this Deed and that, if any
provision of this Deed shall be interpreted as waiving the preferred status of this Deed, that provision shall to such extent be void and of no effect.
|
|
|
17.23
|
The exercise by the Mortgagee or by any receiver and/or manager appointed by the Mortgagee of any of their rights, powers, discretions or remedies under or arising out
of this Deed shall not be interpreted as the taking by the Mortgagee or by such receiver and/or manager of the management of the Vessel nor as evidencing any intention by the Mortgagee or by any receiver and/or manager appointed by the Mortgagee to
take over the management of the Vessel.
|
24
IN WITNESS
whereof this Deed has been executed by the parties hereto on the day first written above.
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
NORWEGIAN JEWEL LIMITED
|
|
)
|
|
by
|
|
)
|
|
its duly appointed attorney-in-fact,
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
|
|
|
|
SIGNED SEALED
and
DELIVERED
as a
DEED
|
|
)
|
|
for and on behalf of
|
|
)
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
by
|
|
)
|
|
who in accordance with the laws of that territory,
|
|
)
|
|
is acting under the authority of the company
|
|
)
|
25
Schedule 1
USD334,050,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated
from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project and
Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
26
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
27
OVERSEA-CHINESE BANKING
CORPORATION LIMITED
Singapore Branch
65 Chulia Street #10-00
Singapore 049513
|
Fax:
|
+65 6536 6449/6532 5347
|
|
Attn:
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
CREDIT AGRICOLE
CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
28
Schedule 2
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as
amended and/or
restated from time to time
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
29
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
Part II
EUR40,000,000 Loan for Pride of America Ship Holding, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
30
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
31
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
|
Email:
|
lam.curacao@dvbbank.com/james.neira@dvbbank.com
|
Part III
EUR308,130,000 Loan for Pride of Hawaii, LLC
Agent
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
32
Hermes Agent
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
|
Attn:
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
exportfinance@commerzbank.com
|
Trustee
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
solveig.knoff@dnbnor.no
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
33
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Federal Republic of Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
34
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
Attn:
|
Mr Stephan Bachmann
|
|
Email:
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
Attn:
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
35
Schedule 3
EUR624,000,000 Secured Loan Agreement dated 7 October 2005 as amended and/or
restated from time to time
Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Security Agent
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Restructuring
Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lower Saxony
Guarantee Agent
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
shipfinance@commerzbank.com
|
36
Restructuring Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Solveig Nuland Knoff
|
Lenders
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Germany
|
Attn:
|
Mr Stefan Kuch/Mr Marcus Weber/
|
|
Email:
|
shipfinance@commerzbank.com
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
Attn:
|
Mr Torsten Reinecke
|
|
Email:
|
shipping@nordlb.de
|
37
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND
PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
Attn:
|
Douglas Newton / Russell Parker
|
|
Email:
|
douglas_newton@bankofscotland.co.uk
|
UNICREDIT BANK AG
(formerly known as
Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
Fax:
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
Mr Peter-Alexander Wunner/
|
|
Email:
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
michael.mccarthy@unicreditgroup.de
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
Attn:
|
Dr Matthias Fischer
|
|
Email:
|
matthias.fischer@schiffsbank.com
|
38
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
Attn:
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
oivind.haraldsen@fokus.no/
|
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
Email:
|
carsten.dreyer@hsh-nordbank.com
|
|
Email:
|
frauke.hay@hsh-nordbank.com
|
SKANDINAVISKA
ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
Attn:
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
egil.aarrestad@seb.co.uk/malcolm.stonehouse@seb.co.uk
|
39
Schedule 4
EUR126,075,000 Credit Agreement dated November [__], 2010 as amended and/or
restated from time to time
Trustee:
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Germany
|
Email:
|
Claudia.wenzel@kfw.de
|
As Trustee for
:
NORDEA BANK NORGE ASA
Middelthunsgate 17
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 8
D – 20095 Hamburg
Germany
Ms Anne
Randewig
|
Email:
|
marcus.weber@commerzbank.com
|
|
|
anne.randewig@commerzbank.com
|
40
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Email:
|
amra.koluder@dnbnor.no
|
KFW
IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 4466/ 2944
|
|
Attn:
|
Mr Stephan Pueschel
|
|
Email:
|
stephan.pueschel@kfw.de
|
|
|
christian.schweiger@kfw.de
|
HSBC BANK PLC
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
And each other
Secured Creditor under and as defined in the Credit Agreement.
41
EXHIBIT I-1
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [
—
] 2010
HULL NO. S.
678
FORM OF ASSIGNMENT OF CONTRACTS
between
BREAKAWAY ONE, LTD.
as Company
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
COVENANT TO PAY
|
|
|
6
|
|
|
3.
|
|
LEGAL ASSIGNMENT
|
|
|
6
|
|
|
4.
|
|
THE CONTRACT
|
|
|
7
|
|
|
5.
|
|
CONTINUING SECURITY
|
|
|
8
|
|
|
6.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
10
|
|
|
7.
|
|
UNDERTAKINGS
|
|
|
12
|
|
|
8.
|
|
FURTHER ASSURANCE
|
|
|
13
|
|
|
9.
|
|
ENFORCEMENT OF SECURITY
|
|
|
13
|
|
|
10.
|
|
RECEIVERS
|
|
|
14
|
|
|
11.
|
|
APPLICATION OF PROCEEDS
|
|
|
15
|
|
|
12.
|
|
POWER OF ATTORNEY
|
|
|
15
|
|
|
13.
|
|
RELEASE OF THE SECURITY
|
|
|
15
|
|
|
14.
|
|
PAYMENTS
|
|
|
15
|
|
|
15.
|
|
WAIVERS AND REMEDIES
|
|
|
16
|
|
|
16.
|
|
ADDITIONAL PROVISIONS
|
|
|
16
|
|
|
17.
|
|
ASSIGNMENT
|
|
|
17
|
|
|
18.
|
|
NOTICES
|
|
|
17
|
|
|
19.
|
|
GOVERNING LAW
|
|
|
19
|
|
|
20.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
20
|
|
|
|
|
|
|
|
|
|
|
Schedule 1
|
|
FORMS OF NOTICE OF ASSIGNMENT
|
|
|
21
|
|
|
Schedule 2
|
|
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
31
|
|
|
Schedule 3
|
|
DETAILS OF REFUND GUARANTEES
|
|
|
41
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY ONE, LTD.,
a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Company
”
); and
|
|
(2)
|
KFW IPEX-BANK GMBH,
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ respective obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
|
(C)
|
The Company and the Collateral Agent intend this Assignment to take effect as a deed.
|
|
(D)
|
The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreements, the Security Trust
Deeds and the Intercreditor Agreement.
|
In this Assignment
the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
” means a
duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
|
|
(a)
|
Part 1, in the case of the Construction Contract;
|
|
|
(b)
|
Part 2, in the case of the Refund Guarantees; and
|
|
|
(c)
|
Part 3, in the case of the Construction Risks Insurance Policies; and
|
or in each case in such other form as may be approved by the Collateral Agent.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit
Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and benefits in, to and in
respect of the Contracts.
“
Borrower
” means Pride of Hawaii, LLC (“
POH
”) with respect to the
Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway One Credit Facility
” means the €529,846,154 credit facility dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank
Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Company, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the Shipbuilder and the Company in connection with the construction of
the Vessel under the Construction Contract.
“
Contracts
” means each of the:
|
|
(a)
|
the Construction Contract;
|
|
|
(b)
|
the Refund Guarantees; and
|
|
|
(c)
|
the Construction Risks Insurance Policies.
|
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit Agreement.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in each Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Company, the Lenders, the lenders under the Breakaway One Credit Facility, the collateral agent under the Breakaway One Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the
Jewel Credit Facility).
2
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan
facility, dated on or about the date hereof, among
inter alia
, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
,
the Parent, POH, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“Jewel Credit
Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1
(
Forms of Notice of Assignment
) being:
|
|
(a)
|
Part 1, in the case of the Construction Contract;
|
|
|
(b)
|
Part 2, in the case of each Refund Guarantees;
|
|
|
(c)
|
Part 3, in the case of the Construction Risks Insurance Policies;
|
or in each case such other form as may be approved by the Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at
any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender
subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 1 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the Company and the Collateral Agent as security trustee on behalf of the
ECF Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
3
“
Receiver
” means a receiver and manager or any other receiver (whether
appointed pursuant to this Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company to secure
certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
4
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
5
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Company agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to
any Enforcement Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Collateral Agent.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured
Obligations.
|
3.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Company
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
|
|
3.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Contract
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Company under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or supplement (A) of a
technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the Collateral Agent shall be
required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the Company to perform its
obligations under the Credit Documents;
|
7
|
|
(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
|
|
|
(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Company on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts).
|
|
|
(b)
|
Notwithstanding anything to the contrary herein, the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
|
|
|
(c)
|
The Company acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
|
|
4.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
8
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the
Collateral Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
9
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Company acknowledges that the Collateral Agent has entered into
this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
10
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with each Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway One Credit Facility and each
Credit Agreement, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway One Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
11
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under each Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Company shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
12
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Collateral Agent until delivered
provided
that
, to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 7.5 to the extent that it fulfils its obligations under clause 7.5 (
Delivery of Cash
) of the Other
Vessel 1 Assignment of Contracts.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent shall act in accordance with the terms of any instructions received under the Intercreditor Agreement for the purposes of exercising (or refraining from
exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights
conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
13
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to
apply the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Company.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
14
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Company shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
15
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Company in
16
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway One Credit Facility and the Credit Agreements.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit
Agreements.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deeds.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
17
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
18
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Company agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Company to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
19
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company and the Collateral Agent.
20
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
Part 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the
“
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in,
to or in respect of the construction contract dated 24 September 2010 between the Company and you, as shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the passenger cruise ship (the
“
Ship
”) with provisional hull number 678 (the “
Construction Contract
”).
With effect from your receipt of
this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Company as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and
(ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party
thereto, KfW IPEX-Bank
|
21
|
|
GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent,
all payments to be made to the Company under or arising from the Construction Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(c)
|
following an Event of Default, all remedies of the Company provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Contract are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or changes
to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case unless
such amendment, modification or change is approved in advance by each of the Facility Agents (as defined in each Credit Agreement) and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as
referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Contract. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
22
You are hereby authorised and instructed, without requiring further approval from the Company, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
23
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
|
|
Attention: Ship Finance, X2a4, Claudia Wenzel
|
|
|
E-mail: claudia.wenzel@kfw.de
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway One,
Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and
benefits in, to or in respect of the refund guarantee dated [
—
] and issued by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of
Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH
as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL
Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit
|
24
|
|
Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Company provided for in the Refund Guarantee or
available at law or in equity shall be exercisable by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral Agent
from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Company.
25
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
26
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated
[
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
27
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan
facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein),
KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
28
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
29
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
30
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE SHIPBUILDER
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Contract) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title,
interests and benefits in, to or in respect of the Construction Contract and that we will comply with the terms of the Notice.
We also
confirm that the Construction Contract is in full force and effect in accordance with its terms. We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized
terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable) with respect to the Construction Contract.
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|
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Yours faithfully
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|
|
|
|
For and on behalf of
Meyer Werft GmbH
as
Shipbuilder
|
31
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND
GUARANTOR
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and
benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that
we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
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|
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Yours faithfully
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|
For and on behalf of
[the Refund Guarantor]
as Refund
Guarantor
|
32
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[
To be printed only on
copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
HULL NO. S. 678
(the “
Vessel
”)
BREAKAWAY ONE, LTD.
(the
“
Company
”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (i) (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Risks
Insurance Policy) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply
with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its authorised managers or agents and in consideration of you and the Company approving us as the appointed brokers in connection with the insurances
covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Company and acknowledged by underwriters in accordance with market practice; and
|
33
|
4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
|
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5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
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|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
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|
8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
34
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Yours faithfully
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|
For and on behalf of
[the Broker]
as
[Broker]
|
35
ANNEX 1
DETAILS OF INSURANCES
36
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY ONE, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
37
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway One, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated
[
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.678 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
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(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
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(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
38
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined
therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
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(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
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(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
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(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
39
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
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|
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|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
40
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
|
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[Name of Issuer]
|
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[Date of Refund Guarantee]
|
41
|
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SIGNATORIES
|
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Signed as a deed on behalf of
BREAKAWAY ONE, LTD
, a company incorporated in Bermuda, by [full name(s) of person(s) signing], being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [full name(s) of person(s) signing], being [a] person[s] who, in
accordance with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
|
42
EXHIBIT I-2
[*]: THE
CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Dated [
—
] 2010
HULL NO. S.
692
FORM OF ASSIGNMENT OF CONTRACTS
between
BREAKAWAY TWO, LTD.
as Company
and
KFW IPEX-BANK GMBH
as Collateral Agent
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
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Page
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1.
|
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INTERPRETATION
|
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1
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2.
|
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COVENANT TO PAY
|
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6
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3.
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LEGAL ASSIGNMENT
|
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6
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4.
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THE CONTRACT
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7
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5.
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CONTINUING SECURITY
|
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8
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6.
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REPRESENTATIONS AND WARRANTIES
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10
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7.
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UNDERTAKINGS
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12
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8.
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FURTHER ASSURANCE
|
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13
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9.
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ENFORCEMENT OF SECURITY
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13
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10.
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RECEIVERS
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14
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11.
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APPLICATION OF PROCEEDS
|
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15
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12.
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POWER OF ATTORNEY
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15
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13.
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RELEASE OF THE SECURITY
|
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15
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14.
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PAYMENTS
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15
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15.
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WAIVERS AND REMEDIES
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16
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16.
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ADDITIONAL PROVISIONS
|
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16
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17.
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ASSIGNMENT
|
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17
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18.
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NOTICES
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17
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19.
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GOVERNING LAW
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19
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20.
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COUNTERPARTS AND EFFECTIVENESS
|
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20
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SCHEDULE 1 FORMS OF NOTICE OF ASSIGNMENT
|
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21
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SCHEDULE 2 FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
|
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31
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SCHEDULE 3 DETAILS OF REFUND GUARANTEES
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41
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White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.,
a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“Company”
); and
|
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(2)
|
KFW IPEX-BANK GMBH,
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ respective obligations and Liabilities as Borrower under or in relation to the Credit Documents.
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(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
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(C)
|
The Company and the Collateral Agent intend this Assignment to take effect as a deed.
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(D)
|
The Collateral Agent holds the benefit of this Assignment on trust for itself and for the Secured Creditors on the terms of the Credit Agreements, the Security Trust
Deeds and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in the relevant Part of Schedule 2 (
Forms of Acknowledgement of Assignment
) being:
|
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(a)
|
Part 1, in the case of the Construction Contract;
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(b)
|
Part 2, in the case of the Refund Guarantees; and
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(c)
|
Part 3, in the case of the Construction Risks Insurance Policies; and
|
or in each case in such other form as may be approved by the Collateral Agent.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit
Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and benefits in, to and in
respect of the Contracts.
“
Borrower
” means Pride of Hawaii, LLC (“
POH
”) with respect to the
Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway Two Credit Facility
” means the €529,846,154 credit facility dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank
Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated
24 September 2010 between the Company, the Parent and the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Construction Risks Insurance Policies
” any and all insurance policies from time to time issued for the benefit of the Shipbuilder and the Company in connection with the construction of
the Vessel under the Construction Contract.
“
Contracts
” means each of the:
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|
(a)
|
the Construction Contract;
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(b)
|
the Refund Guarantees; and
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(c)
|
the Construction Risks Insurance Policies.
|
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit Agreement.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in each Credit Agreement.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the
Company, the Lenders, the lenders under the Breakaway Two Credit Facility, the collateral agent under the Breakaway Two Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the
Jewel Credit Facility).
2
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan
facility, dated on or about the date hereof, among
inter alia
, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
,
the Parent, POH, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“Jewel Credit
Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in the relevant Part of Schedule 1
(
Forms of Notice of Assignment
) being:
|
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(a)
|
Part 1, in the case of the Construction Contract;
|
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(b)
|
Part 2, in the case of each Refund Guarantees;
|
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|
(c)
|
Part 3, in the case of the Construction Risks Insurance Policies;
|
or in each case such other form as may be approved by the Collateral Agent.
“
Other Creditors
” means each Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at
any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender
subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and assigns, if any.
“
Other Vessel 2 Assignment of Contracts
” means the assignment agreement dated on or about the date hereof between the Company and the Collateral Agent as security trustee on behalf of the
ECF Creditors (as defined in the Intercreditor Agreement) in respect of the Refund Guarantees, the Construction Contract and the Construction Risks Insurance Policies.
“
Parent
” means NCL Corporation Ltd., a Bermuda company.
3
“
Receiver
” means a receiver and manager or any other receiver (whether
appointed pursuant to this Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company to secure
certain obligations of the Shipbuilder under the Construction Contract other than any refund guarantees issued by KfW IPEX-Bank GmbH acting in its capacity as a refund guarantor.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Collateral Agent is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
4
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 3.1 (
Assignment
) or Clause 3.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 16.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
5
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
The
Company agrees that promptly on demand of the Collateral Agent it will pay to the Collateral Agent any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to
any Enforcement Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Collateral Agent.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Collateral Agent to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured
Obligations.
|
3.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 3.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 3.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Collateral Agent as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Collateral Agent of the same and the reasons therefore and thereafter take such steps as the Collateral Agent may
reasonably require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to each party to the Contracts as of the date hereof, a Notice of Assignment
and if the Collateral Agent so requests the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee or Construction Risks Insurance Policy entered into after the date of this Assignment, the Company
shall deliver to each refund guarantor or broker (as applicable), a Notice of Assignment in respect of such Refund Guarantee or Construction Risks Insurance Policy (as applicable).
|
|
3.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after each other party to the Contracts receives a Notice of Assignment, such other party shall deliver to the
Collateral Agent an Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Collateral Agent.
|
4.1
|
No Dealings with the Contract
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive (A) any refunds, payments or damages payable as a consequence of the repudiation or termination of the Construction Contract, (B) during the
continuance of an Event of Default, any other sums from time to time payable to the Company under or in respect of the Construction Contract or (C) any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
agree to any waiver or amendment of or supplement to the terms of any Construction Risks Insurance Policy other than any waiver, amendment or supplement (A) of a
technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of the Collateral Agent shall be
required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the Company to perform its
obligations under the Credit Documents;
|
7
|
|
(iv)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination;
|
|
|
(v)
|
terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction Risks Insurance Policy is entered
into by the Company on or prior to such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(vi)
|
assign, charge or dispose of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts).
|
|
|
(b)
|
Notwithstanding anything to the contrary herein, the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other
than material amendments, modifications or changes to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the Initial Construction Price in excess of [*] in the aggregate, in each case
unless such amendment, modification or change is approved in advance by the Facility Agent and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover.
|
|
|
(c)
|
The Company acknowledges that at all times during the Security Period any payments under or in respect of the Construction Risks Insurance Policies shall be made in
accordance with the Loss Payable Clause set out in the Annex to Part 3 (
Form of Notice of Assignment to the Broker
) of Schedule 1 (
Forms of Notice of Assignment
).
|
|
4.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Collateral Agent to preserve or protect its interests
and the interests of the Collateral Agent in the Contracts and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Contracts which are necessary to preserve, protect
and enforce the interests of the Collateral Agent in the Contracts.
|
5.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Collateral Agent may have at any time for the Secured
Obligations or any of them.
8
If the
Collateral Agent receives notice of any security created or arising during the Security Period in respect of the Contracts or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of Contracts), or following the occurrence
and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Collateral Agent may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had
done so at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Collateral Agent in respect of the Secured Obligations, or realised or recovered by the
Collateral Agent under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
5.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Collateral Agent may have for
such Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Collateral Agent has conceded or compromised any claim
that any such payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Collateral Agent nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them
by this Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Collateral Agent by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Collateral Agent in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
|
9
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Collateral Agent in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Collateral
Agent in respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Collateral Agent in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Collateral Agent by this Assignment or by law.
|
Neither
the Collateral Agent nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or paid to the
Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 6.1 (
Entity Status
) to 6.8 (
Contract Terms
). The Company acknowledges that the Collateral Agent has entered into
this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
10
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
6.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
6.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
6.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with each Credit Agreement, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway Two Credit Facility and each
Credit Agreement, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway Two Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
11
The terms
of the Contracts do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights pursuant to this Assignment.
The
representations and warranties set out in this Clause 6:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under each Credit Agreement; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 6 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
|
7.3
|
Notification of Misrepresentation
|
The Company shall notify the Collateral Agent of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Clause 6
(
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide the Collateral Agent with such reports and other information regarding the Contracts as the Collateral Agent may from time to time reasonably
request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent with updated information relating to such Refund Guarantee.
|
12
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Contracts in the form received (properly endorsed, but without recourse, for collection where required) to the Collateral Agent and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Collateral Agent until delivered
provided
that
, to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 7.5 to the extent that it fulfils its obligations under clause 7.5 (
Delivery of Cash
) of the Other
Vessel 2 Assignment of Contracts.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Contracts to the Collateral Agent if such notice or correspondence has had or could reasonably be expected to have a material
adverse effect on the value of such Contract.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent may reasonably require or consider desirable to enable the Collateral Agent to perfect, preserve or protect the security
created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such notices and
directions as the Collateral Agent may consider necessary.
|
9.
|
ENFORCEMENT OF SECURITY
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Collateral Agent shall act in accordance with the terms of any instructions received under the Intercreditor Agreement for the purposes of exercising (or refraining from
exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Collateral Agent may in its absolute discretion enforce all or any part of the Security and exercise any of the rights
conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
13
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Collateral Agent may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to
apply the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Collateral Agent of its
right to consolidate mortgages or its power of sale.
If
the Collateral Agent enforces the Security (whether by appointment of a Receiver or otherwise), the Collateral Agent may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds
or receives under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 11 (
Application of Proceeds
).
|
10.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the
Collateral Agent may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for
all purposes the agent of the Company.
|
10.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Collateral Agent by this Assignment, each Receiver appointed pursuant to Clause 10.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was
appointed all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
14
|
11.
|
APPLICATION OF PROCEEDS
|
|
11.1
|
Any moneys held or received by the Collateral Agent under this Assignment shall be applied by the Collateral Agent in or towards the discharge of the Secured
Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints each of the Collateral Agent and its delegates and sub-delegates to be its attorney acting severally (or jointly with any other such
attorney or attorneys) and on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do under the terms of this Assignment or which such attorney considers necessary or desirable in order to enable the
Collateral Agent or such attorney to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever any attorney appointed under this Assignment shall do in its capacity as such.
|
13.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each case without
recourse to or any representation or warranty by or from the Collateral Agent.
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Collateral Agent to any Secured Creditor, under this Assignment, the
Company shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
14.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
15
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Collateral Agent to exercise, nor any delay by the Collateral Agent in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy
prevent any further or other exercise thereof or the exercise of any other such right or remedy.
|
16.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
16.2
|
Potentially Avoided Payments
|
If the Collateral Agent determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom
such amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
If
necessary to apply any sum held or received by the Collateral Agent in or towards payment of the Secured Obligations, the Collateral Agent may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at
such time as it considers appropriate, the Collateral Agent is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Collateral Agent could purchase the specified currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligations of the Company in
16
respect of any sum due to the Collateral Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business
Day following receipt by the Collateral Agent of any sum adjudged to be so due in such other currency the Collateral Agent may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of
the specified currency so purchased is less than the sum originally due to the Collateral Agent in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Collateral Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Collateral Agent in the specified currency, the Collateral Agent agrees to remit such
excess to the Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
16.6
|
Collateral Agent in Possession
|
The Collateral Agent shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the Assigned Rights be liable to account as mortgagee in possession
or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
17.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway Two Credit Facility and the Credit Agreements.
|
17.2
|
The Collateral Agent’s Rights
|
|
|
(a)
|
The rights of the Collateral Agent under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit
Agreements.
|
|
|
(b)
|
The Collateral Agent may not resign except in accordance with the terms of the Security Trust Deeds.
|
|
18.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
17
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 18.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
18
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 18.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent and the Company agree that they
(x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their address or
any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent shall not be effective until received by the Collateral Agent, or (iv) when electronic mailed, be effective only when actually received in readable form and in the case
of any electronic communication made by the Company to the Collateral Agent, only if it is addressed in such a manner as the Collateral Agent shall specify for this purpose.
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 19 is for the benefit of the Collateral Agent on behalf of the Secured Creditors. As a result, it shall not be prevented
from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent may take concurrent proceedings in any number of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another agent for this purpose.
|
19
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 19.
|
|
20.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company and the Collateral Agent.
20
SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT
Part 1
FORM OF NOTICE OF ASSIGNMENT TO THE SHIPBUILDER
Industriegebiet Süd
D-26871 Papenburg
Germany
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of the construction contract dated 24 September 2010 between the Company and you, as shipbuilder
in relation to the design, engineering, building, launching, equipping and outfitting of the passenger cruise ship (the “
Ship
”) with provisional hull number 692 (the “
Construction Contract
”).
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
subject to paragraph (b), all refunds, payments or damages payable to the Company as a consequence of the repudiation or termination of the Construction Contraction
should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and
(ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party
thereto, KfW IPEX-Bank
|
21
|
|
GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent,
all payments to be made to the Company under or arising from the Construction Contract should be made to the Collateral Agent or to its order as it may specify in writing from time to time;
|
|
(c)
|
following an Event of Default, all remedies of the Company provided for in the Construction Contract or available at law or in equity shall be exercisable by the
Collateral Agent;
|
|
(d)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Contract shall be exercisable by the Collateral Agent;
|
|
(e)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Contract are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(f)
|
the Company may make amendments, modifications or changes to any term or provision of the Construction Contract other than material amendments, modifications or changes
to any term or provision of the Construction Contract that would change (i) the purpose of the Vessel or (ii) the initial construction price of the Vessel (i.e., €615,000,000) in excess of [*] in the aggregate, in each case unless
such amendment, modification or change is approved in advance by each of the Facility Agents (as defined in each Credit Agreement) and same could not reasonably be expected to be adverse to the interests of the Lenders or the Hermes Cover (as
referenced in the Assignment);
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Contract (including without
limitation, the right to superintend the construction of the Ship and to propose and agree modifications (as referred to in the Construction Contract) and to accept or reject the Ship and to take and accept delivery of and title to the Ship) unless
and until the Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to
the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Contract. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral
Agent from time to time in connection with the Construction Contract without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Construction Contract and the Collateral Agent is under no obligation of any kind under
the Construction Contract nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
22
You are hereby authorised and instructed, without requiring further approval from the Company, to provide
the Collateral Agent with such information relating to the Construction Contract as it may from time to time reasonably request and to send copies of any notices issued by you under the Construction Contract which have had or would reasonably be
expected to have a material adverse effect on the value of the Construction Contract or the Ship, to the Collateral Agent as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
23
Part 2
FORM OF NOTICE OF ASSIGNMENT TO THE REFUND GUARANTOR
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between
BREAKAWAY TWO
, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
—
] and issued
by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund
Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
With effect from your receipt of
this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Collateral Agent or to its order as it may specify in writing
from time to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH
as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL
Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit
|
24
|
|
Agreements
”)), written notice of which Event of Default has been delivered to you by the Collateral Agent, all remedies of the Company provided for in the Refund Guarantee or
available at law or in equity shall be exercisable by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Collateral
Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except to the extent that the
Collateral Agent notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) (including,
without limitation, making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Collateral Agent
from time to time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Collateral Agent is under no obligation of any kind under the
Refund Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You
are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of
all notices issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Collateral Agent as well as to the Company.
25
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
26
Part 3
FORM OF NOTICE OF ASSIGNMENT TO THE BROKER
(for attachment by way of
endorsement to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between
BREAKAWAY TWO
, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated
[
—
] issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt
and the provisional hull number S.692 to be constructed by the Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the Construction Risks Insurance
Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
|
(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
27
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan
facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein),
KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
|
(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of
28
all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the Construction Risks
Insurance Policy, to the Collateral Agent as well as to the Company.
This notice of assignment shall terminate, and be of no further force
and effect, upon termination of the Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by
signing and dating the acknowledgment set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
|
|
|
|
|
|
|
For and on behalf of
BREAKAWAY TWO, LTD.
|
29
ANNEX 1
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
30
SCHEDULE 2
FORMS OF ACKNOWLEDGMENT OF ASSIGNMENT
Part 1
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE SHIPBUILDER
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Contract) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title,
interests and benefits in, to or in respect of the Construction Contract and that we will comply with the terms of the Notice.
We also
confirm that the Construction Contract is in full force and effect in accordance with its terms. We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized
terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable) with respect to the Construction Contract.
Yours faithfully
|
|
|
|
|
For and on behalf of
Meyer Werft GmbH
as
Shipbuilder
|
|
|
|
|
By:
|
|
|
|
|
|
|
Date:
|
|
|
31
Part 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE REFUND
GUARANTOR
[
To be printed only on copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and
benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
We further agree and confirm that
we acknowledge that we shall not challenge the effectiveness of the Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
Yours faithfully
|
|
|
|
|
For and on behalf of
[the Refund Guarantor]
as Refund
Guarantor
|
|
|
|
|
By:
|
|
|
|
|
|
|
Date:
|
|
|
32
Part 3
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT FROM THE BROKER
[
To be printed only on
copy of the Notice of Assignment given
]
|
To:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
HULL NO. S. 692
(the “
Vessel
”)
BREAKAWAY TWO, LTD.
(the
“
Company
”)
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with
and comply with the terms of the Notice and we confirm that (i) (other than in respect of senior liens held by the Collateral Agent as security trustee on behalf of certain “ECF creditors” in respect of the Construction Risks
Insurance Policy) we have not received notice of any other assignments or charges of or over any of the Company’s rights, title, interests and benefits in, to or in respect of the Construction Risks Insurance Policy, (ii) we will comply
with the terms of the Notice and (iii) we have effected insurances for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company as set out in Annex 1 attached.
Pursuant to instructions received from the Yard and/or its authorised managers or agents and in consideration of you and the Company approving us as the appointed brokers in connection with the insurances
covered by this letter, we hereby undertake:
|
1.
|
to hold the insurance slips or contracts, the policies when issued, and any renewals of such policies or any policies substituted therefor with your consent as may be
arranged through ourselves and the benefit of the insurances thereunder to your order in accordance with the terms of the Loss Payable Clause set out in Annex 2; and
|
|
2.
|
to arrange for the said Loss Payable Clause to be included on the policies when issued; and
|
|
3.
|
to have endorsed on each and every policy as and when the same is issued a Notice of Assignment to Underwriters in the form of Annex 3 hereto dated and signed by the
Company and acknowledged by underwriters in accordance with market practice; and
|
33
|
4.
|
to advise you promptly if we cease to be the appointed brokers in connection with the insurances covered by this letter or in the event of any material changes of which
we are aware affecting such insurances; and
|
|
5.
|
following a written application received from you not later than one month before expiry of these insurances to notify you within fourteen days of the receipt of such
application in the event of our not having received notice of renewal instructions from the Yard and/or its authorised managers or agents, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from underwriters; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our intermediary; and
|
|
8.
|
not to challenge the effectiveness of the assignment to the Collateral Agent of the insurances constituted by this policy; and
|
|
9.
|
not to revoke, modify or change the terms of the Loss Payable Clause or the undertakings made herein without the written consent of the Collateral Agent.
|
If and where we are responsible for the payment of premium to underwriters, our above undertakings are given subject to our
lien on the policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days notice in writing either by letter or
electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
It is understood and agreed that the
operation of any automatic termination of cover, cancellation or amendment provisions contained in the policy conditions shall override any undertakings given by us as brokers.
Notwithstanding the terms of the said Loss Payable Clause and the Notice, unless and until we receive written notice from you to the contrary, we shall be empowered to arrange for a collision and/or
salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the Vessel or to secure the release of the Vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor
has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out of the proceeds of the said policies a sum equal to the sum so paid.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive
jurisdiction of the English courts.
34
This undertaking is subject to all claims and returns of premiums being collected through us as brokers.
Yours faithfully
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For and on behalf of
[the Broker]
as
[Broker]
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By:
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Date:
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35
ANNEX 1
DETAILS OF INSURANCES
36
ANNEX 2
LOSS PAYABLE CLAUSE
It is noted that by a first legal assignment in writing dated 20[
—
]
BREAKAWAY TWO, LTD.
, the buyer (“
Buyer
”) of the vessel presently under construction by Meyer Werft GmBH, Papenburg Germany (“
Builder
”) with hull number [
—
] has assigned to
KFW IPEX-BANK GMBH
of [
—
] (“
Assignee
”) all the Buyer’s interests in any claims proceeds in this policy and
its benefits therein including all such claims of whatsoever nature as the Buyer may have hereunder.
All sums payable to the Buyer under this
policy shall be paid to the Buyer unless and until underwriters have been otherwise instructed by notice in writing from the Assignee following the occurrence and continuation of an Event of Default, as defined in the Credit Agreement dated as of [
—
] and made among and between the Buyer, NCL Corporation Ltd., as the Buyer’s parent, the Assignee, the lenders from time to time party thereto and the other parties from time to time party thereto.
All sums payable to the Builder under this policy shall be payable to the Builder, subject to any notice of assignment of the Builder’s
interests in this policy.
37
ANNEX 3
NOTICE OF ASSIGNMENT TO UNDERWRITERS
(for attachment by way of endorsement
to the Policy)
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sir/Madam
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Company
”) and KfW IPEX-Bank GmbH as Collateral Agent (the “
Collateral Agent
”), the
Company has assigned to the Collateral Agent a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of construction risks insurance policy dated [
—
]
issued for the benefit of Meyer Werft GmbH (the “
Yard
”) and the Company in connection with the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the
Yard (the “
Construction Risks Insurance Policy
”), including all monies which may be payable to the Company under or in respect of the Construction Risks Insurance Policy.
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Construction Risks Insurance Policy should be made in accordance with the terms of the Loss Payable
Clause set out in the Annex 1 (
Loss Payable Clause
) to this Notice;
|
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(b)
|
following an Event of Default, all remedies of the Company provided for in the Construction Risks Insurance Policy or available at law or in equity shall be exercisable
by the Collateral Agent;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Construction Risks Insurance Policy shall be exercisable by the Collateral Agent;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Construction Risks Insurance Policy are assigned to
the Collateral Agent and are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
38
|
(e)
|
the Company has agreed that no waiver or amendment of or supplement to the terms of the Construction Risks Insurance Policy may be made other than any waiver, amendment
or supplement (A) of a technical nature or (B) agreed to be necessary by the insured parties under the Construction Risks Insurance Policy to reflect the prevailing circumstances, provided that in each case, the prior written consent of
the Collateral Agent shall be required for any such amendment, waiver or supplement that (x) is materially adverse to the interests of the Collateral Agent in the Security or the Assigned Rights or (y) adversely affects the ability of the
Company to perform its obligations under the Credit Documents (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Pride of Hawaii, LLC,
as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term
loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, the NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined
therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)).
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Construction Risks Insurance Policy other than where an equivalent replacement Construction
Risks Insurance Policy is issued in favour of the Yard and the Company on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each of the Credit Agreements) to such termination;
|
|
(g)
|
the Collateral Agent has agreed that the Company may exercise all of its rights and powers under and in respect of the Construction Risks Insurance Policy except that
to the extent that the Collateral Agent notifies you in writing that an Event of Default has occurred. Upon giving such notice, the Collateral Agent may exercise such rights and powers (to the exclusion of the Company) to the extent stated in that
notice and without you being under any duty or obligation to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
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(h)
|
the Company has irrevocably appointed the Collateral Agent to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst
other things) things which the Company could do in relation to the Construction Risks Insurance Policy. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from
the Collateral Agent from time to time in connection with the Construction Risks Insurance Policy without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations (if any) under the Construction Risks Insurance Policy and the Collateral Agent is under no
obligation of any kind under the Construction Risks Insurance Policy nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are hereby authorised and instructed, without requiring further approval from the Company, to provide the Collateral Agent with such information relating to the Construction Risks Insurance Policy as
it may from time to time reasonably request and to send copies of all notices issued by you under the Construction Risks Insurance Policy which have had or would reasonably be expected to have a material adverse effect on the value of the
Construction Risks Insurance Policy, to the Collateral Agent as well as to the Company.
39
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the
Assignment (as notified to you by the Collateral Agent).
Please acknowledge receipt of this notice by signing and dating the acknowledgment
set out on the enclosed copy and returning it to the Collateral Agent.
|
|
|
Yours faithfully
|
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|
For and on behalf of
BREAKAWAY TWO, LTD.
|
40
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
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[Name of Issuer]
|
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[Date of Refund Guarantee]
|
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41
SIGNATORIES
|
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|
|
|
Signed as a deed on behalf of
BREAKAWAY TWO, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
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Authorised [signatory] [signatories]
|
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|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
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Authorised [signatory] [signatories]
|
42
EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
[
], 2010
This Solvency Certificate is delivered pursuant to Section 6.10 of the Credit Agreement, dated as of
[
], 2010, among NCL Corporation Ltd., a Bermuda company (the “
Parent
”), Norwegian Jewel Limited, an Isle of Man company (the
“
Borrower
”), the Lenders from time to time party thereto, KfW IPEX-Bank GmbH, as Facility Agent and as Collateral Agent under the Security Documents, Nordea Bank Norge ASA, as Documentation Agent, Commerzbank Aktiengesellschaft, as
Hermes Agent for the Lenders, and the other parties thereto (as the same may be amended, restated, novated or otherwise modified from time to time, the “
Credit Agreement
”). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, a senior financial officer of
the Parent, hereby certifies to the Facility Agent and each of the Lenders, solely in such capacity and on behalf of the Parent as follows:
1. I am a senior financial officer of the Parent. I am familiar with the Transaction, and have reviewed the financial statements referred to in Section 8.05 of the Credit Agreement and other such
documents and made such investigations as I have deemed relevant for the purposes of this Solvency Certificate.
2. On and as of the date hereof, immediately after giving effect to the transactions under the Credit Agreement
(including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of each New Vessel), the Parent and its Subsidiaries taken as a whole (i) are not insolvent and will not be rendered
insolvent by the Indebtedness incurred in connection with the transactions under the Credit Agreement (including, without limitation, the incurrence of all the financing contemplated with respect thereto and to the purchase of the Vessel);
(ii) will not have unreasonably small capital with which to conduct the business in which they are respectively engaged as such businesses are now conducted and are proposed to be conducted following the Borrowing Date to occur on or about the
date hereof; and (iii) have not incurred debts beyond their ability pay such debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute, matured, or otherwise become payable.
This Solvency Certificate is being delivered by the undersigned officer only in his capacity as a senior financial officer of the Parent
and not individually and the undersigned shall have no personal liability to the Agents or the Lenders with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first
set forth above.
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NCL CORPORATION LTD.
|
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By:
|
|
|
|
|
|
Title:
|
EXHIBIT K
F
ORM
OF
A
SSIGNMENT
A
GREEMENT
|
To:
|
[ ] as Facility Agent and
[ ], [ ] as Hermes Agent, [ ] as
Parent, for and on behalf of the Borrower
|
|
From:
|
[the
Existing Lender
] (the “
Existing Lender
”) and [the
New Lender
] (the “
New Lender
”)
|
Dated:
Norwegian Jewel
Limited –Credit Agreement
Total Commitment - €126,075,000
dated [ ]
(the “Credit Agreement”)
|
1.
|
We refer to the Credit Agreement and to the ECF Intercreditor Agreements (as defined in the Credit Agreement). This agreement (the “
Agreement
”) shall
take effect as an Assignment Agreement for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
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2.
|
We refer to section 13.07 (
Procedure and Conditions for Assignment
) of the Credit Agreement:
|
|
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Credit Agreement, the other Credit Documents and in respect of
the Collateral which correspond to that portion of the Existing Lender’s Commitments and participations in Borrowings under the Credit Agreement as specified in the Schedule attached hereto.
|
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|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and
participations in Borrowings under the Credit Agreement specified in the Schedule attached hereto.
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(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
|
3.
|
The proposed date of the assignment is [ ].
|
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4.
|
On the date of the assignment the New Lender becomes:
|
|
|
(a)
|
Party to the relevant Credit Documents under the Credit Agreement (other than the ECF Intercreditor Agreements and the Security Trust Deed) as a Lender; and
|
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(b)
|
Party to each ECF Intercreditor Agreement as a Jewel Lender; and
|
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(c)
|
Party to the Security Trust Deed as a Secured Creditor.
|
EXHIBIT K
2
|
5.
|
The Notice Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 14.03 (
Notices
) are set out in the
Schedule.
|
|
6.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Section 13.04 (
Limitation of
responsibility of Existing Lenders
).
|
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7.
|
We refer to Clause 9.2 (
Change to the Parties
) of each ECF Intercreditor Agreement and Clause 8.2 (
Changes of Secured Creditor
) in the Security Trust
Deed.
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(a)
|
In consideration of the New Lender being accepted as a Jewel Lender for the purposes of each ECF Intercreditor Agreement (and as defined therein), the New Lender
confirms that, as from the date of assignment, it intends to be party to each ECF Intercreditor Agreement as a Jewel Lender, and undertakes to perform all the obligations expressed in each ECF Intercreditor Agreement to be assumed by a Jewel Lender
and agrees that it shall be bound by all the provisions of each ECF Intercreditor Agreement, as if it had been an original party to such ECF Intercreditor Agreement.
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(b)
|
In consideration of the New Lender being accepted as a Secured Creditor for the purposes of the Security Trust Deed (and as defined therein), the New Lender confirms
that, as from the date of the assignment, it intends to be party to the Security Trust Deed as a Secured Creditor, and undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by a Secured Creditor and agrees that
it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
|
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8.
|
This Agreement acts as notice to the Facility Agent (on behalf of each Lender Creditor) and, upon delivery in accordance with section 13.08 (
Copy of Transfer
Certificate or Assignment Agreement to Parent
), to the Parent (on behalf of the Borrower) of the assignment referred to in this Agreement.
|
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9.
|
We refer to Section 13.01(c) (
Assignments and Transfers by the Lenders
) of the Credit Agreement. Each New Lender, by executing this Assignment, confirms,
for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the Required Lenders in accordance with the Credit Agreement on or prior to the date on
which the assignment becomes effective in accordance the Credit Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
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10.
|
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.
|
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11.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
EXHIBIT K
3
|
12.
|
This Agreement takes effect as a deed.
|
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13.
|
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
|
Note:
|
The execution of this Assignment Agreement may not assign a proportionate share of the Existing Lender’s interest in the Collateral in all jurisdictions. It is
the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect an assignment of such a share in the Existing Lender’s Collateral in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities.
|
EXHIBIT K
4
THE SCHEDULE
Commitment/rights and obligations to be transferred by assignment, release and accession
[
insert relevant details
]
[
Notice Office address, fax number and attention details for notices and account details for payments
]
EXHIBIT K
SIGNATORIES
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[Existing Lender]
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Executed as a deed by
[name of Existing Lender]
,
acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
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[New Lender]Executed as a deed by
[name of
New Lender]
, acting by [
name of director
]:
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
|
This Agreement is accepted as an Assignment
Agreement for the purposes of the Credit Agreement by the Facility Agent and by the Hermes Agent, and the date of the assignment is confirmed as [ ].
EXHIBIT K
6
Signature of this Agreement by the Facility Agent constitutes confirmation by the Facility Agent of
receipt of notice of the assignment referred to in this Agreement, which notice the Facility Agent receives on behalf of each Lender Creditor.
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[Facility Agent]
|
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Executed as a deed by
[Facility Agent]
, acting by
[
name of director
]:
|
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[
Signature of Director
]
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Director
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[
Signature of Director
]
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Director
|
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[Hermes Agent]
|
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Executed as a deed by
[Hermes Agent]
, acting by
[
name of director
]:
|
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[
Signature of Director
]
|
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Director
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[
Signature of Director
]
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Director
|
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[NCL Corporation Ltd.]
1
|
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[Signed as a deed by
[NCL Corporation Ltd.]
, a company incorporated in Bermuda, by
[
full name(s) of person(s) signing
]
, being [a] person[s] who,
in
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1
|
To be signed by the Company only if the assignment is pursuant to section 13.01(a)(ii) of the Credit Agreement.
|
EXHIBIT K
7
|
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accordance with the laws of that territory, [is][are] acting under the authority of the company.
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Signature(s)
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Authorised [signatory] [signatories]]
|
EXHIBIT L
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (this “
Certificate
”) is delivered to you on behalf of the Company (as hereinafter defined)
pursuant to Section 9.01(f) of the Credit Agreement, dated as of [ ], 2010 (as amended, supplemented, restated novated or modified from time to time, the “
Credit
Agreement
”), among NCL Corporation Ltd., a Bermuda company (the “
Company
”) as Parent, Norwegian Jewel Limited, an Isle of Man company (the “
Borrower
”), the Lenders from time to time party thereto, Nordea
Bank Norge ASA, as Documentation Agent, KfW IPEX-Bank GmbH as Facility Agent and Collateral Agent, Commerzbank Aktiengesellschaft, as Hermes Agent, and the other parties thereto. Capitalized terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
1. I am a duly elected, qualified and acting senior financial officer
of the Company.
2. I have reviewed and am familiar with the contents of this Certificate. I am providing this Certificate
solely in my capacity as an officer of the Company. The matters set forth herein are true to the best of my knowledge after diligent inquiry.
3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and
financial condition of the Company during the accounting period covered by the financial statements true and correct copies of which are attached hereto as ANNEX 1 (the “
Financial Statements
”). The Financial Statements have been
prepared in accordance with the requirements of the Credit Agreement.
4. Attached hereto as ANNEX 2 are the computations
showing (in reasonable detail) compliance with the covenants specified therein. All such computations are true and correct.
[5. On the date hereof, no Default or Event of Default has occurred and is continuing.]
1
|
1
|
If any Default or Event of Default exists, include a description thereof, specifying the nature and extent thereof (in reasonable detail).
|
Exhibit M
Page 2
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the Company this
day of
.
|
|
|
|
|
NCL CORPORATION LTD.
|
|
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|
By
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Name:
|
|
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|
Title:
|
ANNEX 1 to
Compliance Certificate
CONSOLIDATED FINANCIAL STATEMENTS
ANNEX 2 to
Compliance Certificate
COMPLIANCE WORKSHEET
The calculations described herein is as of
,
(the “Computation Date”) and pertains to the period from
,
to
,
(the “Test Period”).
Part A. Free Liquidity
|
|
|
|
|
|
|
1. Aggregate Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
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|
|
2. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
$
|
_______________
|
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
$
|
_______________
|
|
|
|
|
|
4. Is Item 3 equal to or greater [*] pursuant to Section 10.06 of the Credit
Agreement?
|
|
|
YES/NO
|
|
Part B. Total Net Funded Debt to
Total Capitalization
|
|
|
|
|
|
|
1. Indebtedness for Borrowed Money of the NCLC Group on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
2. The amount of any Indebtedness for Borrowed Money of any person which is not a member of
the NCLC Group but which is guaranteed by a member of the NCLC Group on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
3. Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
4. Item 1
plus
Item 2
minus
Item 3
2
|
|
$
|
_______________
|
|
|
|
|
|
5. Total Capitalization on the Computation Date
|
|
$
|
_______________
|
|
|
|
|
|
6. Total Net Funded Debt to Total Capitalization Ratio (Item 4:Item 5) on the Computation
Date.
|
|
|
__________:1.00
|
|
|
2
|
Any Commitments under the Credit Agreement and other amounts available for drawing under other revolving or other credit facilities of the NCLC Group
which remain undrawn shall not be counted as cash or indebtedness for the purposes of this calculation.
|
Exhibit M
Page 2
|
|
|
|
|
7. The maximum Total Net Funded Debt to Total Capitalization Ratio pursuant to Section 10.07
of the Credit Agreement:
|
|
[*]
|
Part C. Collateral Maintenance
|
|
|
|
|
1. Outstanding principal amount of Loans on the Computation Date.
|
|
$_______________
|
|
|
|
|
2. Outstanding the principal amount of loans under the Existing Jewel Facility on the
Computation Date.
|
|
$_______________
|
|
|
|
|
3. Item 1
plus
Item 2.
|
|
$_______________
|
|
|
|
|
4. Vessel Value.
|
|
$_______________
|
|
|
|
|
5. Minimum Vessel Value for the Vessel permitted pursuant to Section 10.08 of the Credit
Agreement.
|
|
Item 1 multiplied
by [*]
|
|
|
|
|
6. Is Item 4 equal to or greater than Item 5 pursuant to Section 10.08 of the
Credit Agreement?
|
|
YES/NO
|
Part D. Consolidated EBITDA to Consolidated Debt
Service
|
|
|
|
|
|
|
1. Consolidated Net Income from the Parent’s operations for the Test
Period.
|
|
$
|
_______________
|
|
|
|
|
|
2. Aggregate amounts deducted in determining Consolidated Net Income for the Test Period in
respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for the Test
Period.
|
|
$
|
_______________
|
|
|
|
|
|
3. Item 1
plus
Item 2
|
|
$
|
_______________
|
|
|
|
|
|
4. Consolidated Debt Service for the Test Period.
|
|
$
|
_______________
|
|
|
|
|
|
5. Consolidated EBITDA to Consolidated Debt Service Ratio (Item 3:Item 4) on the Computation
Date.
|
|
|
__________:1.00
|
|
|
|
|
|
6. The minimum Consolidated EBITDA to Consolidated Debt Service Ratio pursuant to
Section 10.09 of the Credit Agreement:
|
|
|
[*]
|
|
Exhibit M
Page 3
|
|
|
|
|
|
|
7. Aggregate Cash Balance on the Computation Date.
|
|
$
|
_______________
|
|
|
|
|
|
8. Commitments under the Credit Agreement or other amounts available on the Computation Date
for drawing under the revolving or other credit facilities of the NCLC Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six
months.
|
|
$
|
_______________
|
|
|
|
|
|
9. Item 7
plus
Item 8
|
|
$
|
_______________
|
|
|
|
|
|
10. Is (x) Item 9 for the NCLC Group equal to or greater than [*] at all times during the period
of four consecutive fiscal quarters ending at the end of the Test Period or (y) Item 5 greater than or equal to Item 6 pursuant to Section 10.09 of the Credit Agreement?
|
|
|
YES/NO
|
|
EXHIBIT M-1
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY ONE, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate Collateral
Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
EXHIBIT M-1
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
DEFINITIONS AND INTERPRETATION
|
|
|
2
|
|
|
2.
|
|
PRIORITY AND RANKING
|
|
|
7
|
|
|
3.
|
|
NOTIFICATIONS
|
|
|
8
|
|
|
4.
|
|
RESTRICTIONS ON ENFORCEMENT
|
|
|
8
|
|
|
5.
|
|
MANNER OF ENFORCEMENT
|
|
|
9
|
|
|
6.
|
|
TURNOVER OF RECEIPTS
|
|
|
11
|
|
|
7.
|
|
APPLICATION OF PROCEEDS
|
|
|
11
|
|
|
8.
|
|
PRESERVATION
|
|
|
12
|
|
|
9.
|
|
CHANGES TO THE PARTIES
|
|
|
14
|
|
|
10.
|
|
POWER OF ATTORNEY
|
|
|
15
|
|
|
11.
|
|
AMENDMENTS
|
|
|
15
|
|
|
12.
|
|
THIRD PARTY RIGHTS
|
|
|
15
|
|
|
13.
|
|
COUNTERPARTS
|
|
|
15
|
|
|
14.
|
|
NOTICES
|
|
|
15
|
|
|
15.
|
|
PERPETUITY PERIOD
|
|
|
17
|
|
|
16.
|
|
GOVERNING LAW
|
|
|
17
|
|
|
17.
|
|
ENFORCEMENT
|
|
|
18
|
|
|
SCHEDULE 1 ECF SECURITY DOCUMENTS
|
|
|
19
|
|
|
SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
|
|
|
20
|
|
|
SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
|
|
|
21
|
|
|
SCHEDULE 4 ADDRESS DETAILS
|
|
|
23
|
|
(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated
[
—
] 2010 and made between:
|
(1)
|
KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
|
|
(2)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
|
|
(4)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
|
|
(5)
|
BREAKAWAY ONE, LTD.
(the “
Debtor
”);
|
|
(6)
|
KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
|
|
(7)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 1
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
|
NOW THIS DEED WITNESSES
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 1 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
|
|
(a)
|
words denoting the plural number include the singular and vice versa;
|
|
|
(b)
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
|
|
(c)
|
references to Clauses are references to clauses of this Deed;
|
|
|
(d)
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
|
|
(e)
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
(f)
|
references to any party include its successors, transferees and assignees.
|
The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
|
3.1
|
If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
|
|
3.2
|
If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
|
|
4.
|
RESTRICTIONS ON ENFORCEMENT
|
|
4.1
|
Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
|
|
|
(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
|
|
|
(b)
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
|
PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
|
|
(i)
|
filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
|
|
|
(ii)
|
from demanding payment of any of the Term Loan Indebtedness; or
|
|
|
(iii)
|
supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
|
but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
|
4.2
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
|
8
|
4.3
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
|
|
5.1
|
Enforcement Instructions
|
|
|
(a)
|
Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
|
|
|
(b)
|
After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
|
|
|
(c)
|
Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(d)
|
After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(e)
|
Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
|
If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
|
5.4
|
Manner of enforcement
|
If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
|
5.5
|
Exercise of voting rights
|
|
|
(a)
|
Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
|
|
|
(b)
|
The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
|
To the
extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the
Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
|
5.8
|
Certificates in relation to ECF Indebtedness
|
Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
|
5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
|
|
(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
|
|
|
(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
|
7.
|
APPLICATION OF PROCEEDS
|
|
7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
|
|
|
(a)
|
in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
|
|
|
(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
|
|
|
(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
|
|
|
(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
|
|
|
(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
|
|
|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The
provisions of this Deed will not be affected by an act, omission, matter or thing which, but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without
limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
15
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
16
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of Contracts
”).
|
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 1 Assignment of KfW Refund Guarantees
”).
|
|
|
3.
|
The ECF 1 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of Contracts”
).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the
“Term Loan Vessel 1 Assignment of KfW Refund Guarantees”
).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
|
From:
|
[
Acceding Creditor/Agent
]
|
THIS
UNDERTAKING is made on [
date
] by [
insert full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [
—
] between KfW IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the
Jewel Lenders, Breakaway One, Ltd. as Debtor, KfW IPEX-Bank GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the Intercreditor Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes
of the Intercreditor Deed, the Acceding [
Creditor
/ Agent] confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging
Creditor
] and undertakes to perform all the obligations expressed in the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be
bound by all the provisions of the Intercreditor Deed, as if it had been an original party to the Intercreditor Deed.
This Undertaking and
any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS UNDERTAKING
has been entered
into on the date stated above.
Acceding [
Creditor
/ Agent]
[EXECUTED
as a
DEED]
[
insert full name of Acceding Creditor / Agent
]
By:
Address:
Fax:
21
|
|
|
Accepted by the Collateral Agent
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
Date:
|
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail: alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325
Frankfurt am Main
Germany
Telephone:
+49 69 7431 4649 / 4037
Fax: +49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O.
Box
1166 Sentrum
NO-0107 Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22
484193
Facsimile: (47) 22 486668
e-mail: arne.berglund@nordea.com
|
23
SIGNATORIES
|
|
|
|
|
|
|
THE ECF FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
24
|
|
|
|
|
|
|
THE JADE FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
THE JEWEL FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
|
|
|
|
|
|
|
THE ORIGINAL ECF LENDERS
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[
Signature of Director
]
Director
|
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[
Signature of Director
]
Director
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Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
NORDEA BANK
NORGE ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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THE ORIGINAL JADE LENDERS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
NORDEA BANK
NORGE ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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THE ORIGINAL JEWEL LENDERS
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Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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Executed as a deed by
NORDEA BANK
NORGE ASA,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
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THE DEBTOR
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Signed as a deed on behalf of
BREAKAWAY ONE, LTD.,
a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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THE COLLATERAL AGENT
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Executed as a deed by
KFW IPEX-BANK
GMBH,
acting by [
name of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
|
EXHIBIT N
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THE DELEGATE COLLATERAL AGENT
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Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT,
acting by [
name
of director
]:
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[
Signature of Director
]
Director
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[
Signature of Director
]
Director
|
EXHIBIT M-2
Dated [
—
] 2010
FORM OF INTERCREDITOR DEED
between
KFW IPEX-BANK GMBH
as ECF Facility Agent, the Jade Facility Agent and the Jewel Facility Agent
The ECF Lenders
The Jade Lenders
The Jewel Lenders
BREAKAWAY TWO, LTD.
as Debtor
KFW IPEX-BANK GMBH
acting as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
acting as Delegate Collateral Agent
and others
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
EXHIBIT M-2
TABLE OF CONTENTS
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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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PRIORITY AND RANKING
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7
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3.
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NOTIFICATIONS
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8
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4.
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RESTRICTIONS ON ENFORCEMENT
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8
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5.
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MANNER OF ENFORCEMENT
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9
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6.
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TURNOVER OF RECEIPTS
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11
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7.
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APPLICATION OF PROCEEDS
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11
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8.
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PRESERVATION
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12
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9.
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CHANGES TO THE PARTIES
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14
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10.
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POWER OF ATTORNEY
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15
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11.
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AMENDMENTS
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15
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12.
|
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THIRD PARTY RIGHTS
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15
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13.
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COUNTERPARTS
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15
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14.
|
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NOTICES
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15
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15.
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PERPETUITY PERIOD
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17
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16.
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GOVERNING LAW
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17
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17.
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ENFORCEMENT
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17
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SCHEDULE 1 ECF SECURITY DOCUMENTS
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19
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SCHEDULE 2 TERM LOAN SECURITY DOCUMENTS
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20
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SCHEDULE 3 FORM OF CREDITOR ACCESSION UNDERTAKING
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21
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SCHEDULE 4 ADDRESS DETAILS
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23
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(i)
This
INTERCREDITOR DEED
(the “
Deed
”) is dated
[
—
] 2010 and made between:
|
(1)
|
KFW IPEX-BANK GMBH
as ECF Facility Agent, as Jade Facility Agent and Jewel Facility Agent;
|
|
(2)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as ECF Lenders (the “
Original ECF Lenders
”);
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jade Lenders (the “
Original Jade Lenders
”);
|
|
(4)
|
THE FINANCIAL INSTITUTIONS
named on the signing pages as Jewel Lenders (the “
Original Jewel Lenders
”);
|
|
(5)
|
BREAKAWAY TWO, LTD.
(the “
Debtor
”);
|
|
(6)
|
KFW IPEX-BANK GMBH
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2 Security Trust Deed,
(b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the “
Collateral
Agent
”); and
|
|
(7)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
in its capacity as security trustee for (a) the ECF Creditors pursuant to the declaration of trust made in the ECF 2
Security Trust Deed, (b) the Jade Creditors pursuant to the declaration of trust made in the Jade Security Trust Deed and (c) the Jewel Creditors pursuant to the declaration of trust made in the Jewel Security Trust Deed (the
“
Delegate Collateral Agent
”).
|
NOW THIS DEED WITNESSES
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this
Deed:
“
Agents
” means the ECF Facility Agent and the Term Loan Facility Agents.
“
Business Day
” shall mean any day except Saturday, Sunday and any day which shall be in New York, London, Frankfurt am
Main or Norway a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.
“
Creditor
” means the Agents, the ECF Creditors and the Term Loan Creditors.
“
Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 3 (
Form of Creditor Accession Undertaking
).
“
Debt Document
” means each of this Deed, the Hedging Agreements, the ECF Credit Documents, the Term Loan Credit
Documents, the ECF Security Documents, the Term Loan Security Documents and any other document designated as such by the Collateral Agent and the Parent.
“
Delegate
” means any delegate, agent, attorney or co trustee appointed by
the Collateral Agent, including the Delegate Collateral Agent.
“
ECF 2 Security Trust Deed
” means the security
trust deed dated on or about the date hereof between,
inter alia
, the Debtor, the Collateral Agent and the Delegate Collateral Agent as security trustees, the Facility Agent and the ECF Creditors.
“
ECF Credit Agreement
” means the €529,846,154 credit agreement between the Parent, the Debtor, the ECF Lenders and
others dated on or about the date of this Deed.
“
ECF Credit Documents
” means the “Credit Documents”
under and as defined in the ECF Credit Agreement.
“
ECF Creditors
” means the ECF Facility Agent, the
Collateral Agent in its capacity as such under the ECF Credit Documents, the Delegate Collateral Agent in its capacity as such under the ECF Credit Documents, the ECF Lenders and the ECF Hedging Creditors.
“
ECF Discharge Date
” means the first date on which all the ECF Indebtedness and the ECF Hedging Indebtedness, whether in
respect of principal, interest, costs or otherwise and whether present, future, actual or contingent (other than (i) contingent liabilities for which no claim has been made and (ii) indemnities, expense reimbursements or any other
contingent liabilities that expressly survive the termination of the ECF Credit Agreement), has been fully and finally discharged to the satisfaction of the ECF Facility Agent, whether or not as the result of an enforcement, and none of the ECF
Creditors are under any further obligation to provide financial accommodation to either the Parent or the Debtor under the Debt Documents.
“
ECF Facility Agent
” means the “Facility Agent” under and as defined in the ECF Credit Agreement.
“
ECF Hedging Agreements
” means any ECF Interest Rate Protection Agreement and any ECF Other Hedging Agreement to the extent secured by the ECF Loan Collateral.
“
ECF Hedging Creditors
” means each ECF Lender or affiliate thereof that may at any time and from time to time enter into
one or more ECF Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
), even if the respective ECF Lender subsequently ceases to be an ECF Lender under the ECF Credit Agreement for
any reason, together with such ECF Lender’s or affiliate’s successors and assigns, if any.
“
ECF Hedging
Indebtedness
” means the aggregate amount of indebtedness owed from time to time by the Debtor or the Parent to the ECF Hedging Creditors under or pursuant to the ECF Hedging Agreements, whether in respect of principal, interest, costs or
otherwise and whether present, future, actual or contingent.
3
“
ECF Indebtedness
” means the aggregate amount of indebtedness owed from
time to time by the Debtor to the ECF Lenders under or pursuant to any of the ECF Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
ECF Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in
the ECF Credit Agreement.
“
ECF Lenders
” means each Original ECF Lender and each other Lender (as defined
under the ECF Credit Agreement) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
ECF Loan Collateral
” means the “Collateral” under and as defined in the ECF Credit Agreement.
“
ECF Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the ECF Credit
Agreement.
“
ECF Required Lenders
” means the “Required Lenders” under and as defined in the ECF
Credit Agreement.
“
ECF Security Documents
” means the documents referred to in Schedule 1.
“
Event of Default
” unless otherwise defined herein means an “Event of Default” under and as defined in the ECF
Credit Agreement or either of the Term Loan Credit Agreements.
“
Hedging Agreements
” means the Term Loan
Hedging Agreements and the ECF Hedging Agreements.
“
Jade Credit Facility
” means the €126,075,000
delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Pride of Hawaii, LLC, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral
Agent.
“
Jade Creditors
” means the Jade Lenders and the Jade Hedging Creditors.
“
Jade Facility Agent
” means the “Facility Agent” under and as defined in the Jade Credit Facility.
“
Jade Hedging Creditors
” means each “Other Creditor” under and as defined in the Jade Credit Facility that
becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jade Interest Rate
Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined in the Jade Credit Facility.
“
Jade Lenders
” means each Original Jade Lender and each other Lender (as defined under the Jade Credit Facility) that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of
Lender
).
4
“
Jade Other Hedging Agreement
” means any “Other Hedging
Agreement” under as defined in the Jade Credit Facility.
“
Jade Security Trust Deed
” means the
“Security Trust Deed” under and as defined in the Jade Credit Facility.
“
Jewel Credit Facility
”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof, among
inter alia
, Norwegian Jewel Limited as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility
agent and the Collateral Agent.
“
Jewel Creditors
” means the Jewel Lenders and the Jewel Hedging Creditors.
“
Jewel Facility Agent
” means the “Facility Agent” under and as defined in the Jewel Credit
Facility.
“
Jewel Hedging Creditors
” means each “Other Creditor” under and as defined in the Jewel
Credit Facility, that becomes a Party to this Deed pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
“
Jewel Interest Rate Protection Agreement
” means any “Interest Rate Protection Agreement” under and as defined
in the Jewel Credit Facility.
“
Jewel Lenders
” means each “Original Jewel Lender” and each other
“Lender” under and as defined under the Jewel Credit Facility that becomes a Party to this Deed pursuant to Clause 9.2 (
Change of Lender
).
“
Jewel Other Hedging Agreement
” means any “Other Hedging Agreement” under and as defined in the Jewel Credit Facility.
“
Jewel Security Trust Deed
” means the “Security Trust Deed” under and as defined in the Jewel Credit Facility.
“
NCLC Group
” means the “NCLC Group” under and as defined in the ECF Credit Agreement.
“
Parent
” means NCL Corporation Ltd.
“
Party
” means each party to this Deed, from time to time.
“
Payment
” means, in respect of any liabilities or obligations of the Debtor to the Secured Parties, a payment,
prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations.
“
Primary
Creditors
” means the ECF Creditors, the Term Loan Creditors, the ECF Hedging Creditors and the Term Loan Hedging Creditors.
“
Receiver
” means a receiver or receiver and manager or administrative receiver of the whole or any part of the assets which are expressed to be the subject of the Shared Security.
5
“
Secured Parties
” means the Collateral Agent, any Receiver or Delegate and
each of the Agents and the Primary Creditors from time to time but, in the case of each Agent or Primary Creditor, only if it is a Party to this Deed or has become a Party pursuant to the provisions of Clause 9 (
Changes to the Parties
).
“
Security
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing); provided that in no event shall an operating lease be deemed to constitute Security.
“
Security Documents
” means the Term Loan Security Documents and the ECF Security Documents.
“
Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Security Documents.
“
Subsidiaries
” means
“Subsidiaries” under and as defined in the ECF Credit Agreement.
“
Term Loan Collateral
” means
(i) the “Collateral” under and as defined in the Jade Credit Facility and (ii) the “Collateral” under and as defined in the Jewel Credit Facility.
“
Term Loan Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Term Loan Credit Documents
” means each of the “Credit Documents” under and as defined in each of the Term Loan Credit Agreements.
“
Term Loan Creditor
s” means the Term Loan Facility Agents, the Collateral Agent in its capacity as such under the Term
Loan Credit Documents, the Delegate Collateral Agent in its capacity as such under the Term Loan Credit Documents, the Term Loan Lenders and the Term Loan Hedging Creditors.
“
Term Loan Facility Agents
” means the Jewel Facility Agent and the Jade Facility Agent.
“
Term Loan Hedging Agreements
” means any Jade Interest Rate Protection Agreement, any Jewel Interest Rate Protection Agreement, any Jade Other Hedging Agreement and any Jewel Other
Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means the
Jade Hedging Creditors and the Jewel Hedging Creditors.
“
Term Loan Hedging Indebtedness
” means the aggregate
amount of indebtedness owed from time to time by Norwegian Jewel Limited, Pride of Hawaii, LLC or the Parent to the Term Loan Hedging Creditors under or pursuant to the Term Loan Hedging Agreements, whether in respect of principal, interest, costs
or otherwise and whether present, future, actual or contingent.
6
“
Term Loan Indebtedness
” means the aggregate amount of indebtedness owed
from time to time by Norwegian Jewel Limited or Pride of Hawaii, LLC to the Term Loan Creditors under or pursuant to the Term Loan Credit Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or
contingent.
“
Term Loan Lenders
” means the Jade Lenders and the Jewel Lenders.
“
Term Loan Required Lenders
” means in respect of each of the Term Loan Credit Agreements, the meaning given to the term
“Required Lenders” in each of those Term Loan Credit Agreements.
“
Term Loan Security Documents
”
means the documents referred to in Schedule 2.
“
UCC
” means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
In this Deed:
|
|
(a)
|
words denoting the plural number include the singular and vice versa;
|
|
|
(b)
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
|
|
(c)
|
references to Clauses are references to clauses of this Deed;
|
|
|
(d)
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
|
|
(e)
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
(f)
|
references to any party include its successors, transferees and assignees.
|
The
Term Loan Creditors agree that, notwithstanding (i) the date, time, method or order of grant, attachment or perfection of any of the Security Documents or (ii) the timing of delivery of any notice under any of the Security Documents, the
rights, powers, discretions and remedies of the Term Loan Creditors in respect of the Term Loan Security Documents shall be subordinated to the rights, powers, discretions and remedies of any ECF Creditor in respect of the ECF Security Documents.
7
|
3.1
|
If an Event of Default (as defined in the ECF Credit Agreement) shall occur, the ECF Facility Agent shall, as soon as is reasonably practicable after becoming aware of
the same, notify the Term Loan Facility Agents of the same.
|
|
3.2
|
If an Event of Default (as defined in either of the Term Loan Credit Agreements) shall occur, the relevant Term Loan Facility Agent(s) shall, as soon as is reasonably
practicable after becoming aware of the same, notify the ECF Facility Agent of the same.
|
|
4.
|
RESTRICTIONS ON ENFORCEMENT
|
|
4.1
|
Each of the Term Loan Creditors undertakes that prior to the ECF Discharge Date:
|
|
|
(a)
|
irrespective of its legal rights, and subject to Clause 4.2, it will not take any steps to enforce or require the enforcement of any of its rights in respect of the
Shared Security under or pursuant to the Term Loan Security Documents without having first either paid to the ECF Creditors the whole of the ECF Indebtedness or obtained the prior written consent of the ECF Creditors; and
|
|
|
(b)
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of the Collateral Agent, the Delegate Collateral Agent or any ECF Creditor
to, the ECF Security Documents,
|
PROVIDED THAT
nothing in this Clause 4.1 shall prevent any Term Loan
Creditor from:
|
|
(i)
|
filing any action or proceedings necessary for preserving the validity, existence or priority of its rights, or to avoid the loss of or extinction of any of its rights;
|
|
|
(ii)
|
from demanding payment of any of the Term Loan Indebtedness; or
|
|
|
(iii)
|
supporting any proceedings arising from or relating to any enforcement action taken pursuant to the ECF Security Documents by the ECF Creditors with a view (in each
case) to substantiating, preserving or protecting its interests as Term Loan Creditor,
|
but in any such case such
Term Loan Creditor shall give the earliest possible notice to the Collateral Agent of its intention to take such action and shall comply with all requirements of the Collateral Agent with respect to the preservation of the ECF Creditors’ rights
in respect of the ECF Security Documents (which shall include the cessation of, or withdrawal by such Term Loan Creditor from, any proceedings in the event that the Collateral Agent so requires).
|
4.2
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it has not entered into, and will not at any time prior to the ECF Discharge Date enter into, any
arrangement in respect of the Term Loan Security Documents, or any transactions related to or contemplated by the Term Loan Security Documents, as a result of which the ECF Security Documents or the security and other rights constituted and
conferred on any ECF Creditor by the ECF Security Documents are, or may be, prejudiced.
|
8
|
4.3
|
Each of the Term Loan Creditors undertakes to the ECF Creditors that it will not at any time prior to the ECF Discharge Date give any notice to any third party
inconsistent with the rights and powers of the ECF Creditors under or pursuant to the ECF Security Documents. In particular, but without limitation, any notice of the assignment by the Debtor of any assets subject to the Term Loan Security Documents
shall be expressed as being subject to the provisions of this Deed.
|
|
5.1
|
Enforcement Instructions
|
|
|
(a)
|
Prior to the ECF Discharge Date, each of the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed
otherwise by the ECF Required Lenders.
|
|
|
(b)
|
After the ECF Discharge Date, the Collateral Agent and the Delegate Collateral Agent may refrain from enforcing the Shared Security unless instructed otherwise by the
Term Loan Required Lenders.
|
|
|
(c)
|
Prior to the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the ECF Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(d)
|
After the ECF Discharge Date, subject to the Shared Security having become enforceable in accordance with its terms, the Term Loan Required Lenders may give or refrain
from giving instructions to the Collateral Agent to enforce or refrain from enforcing all or any part of the Shared Security as they see fit.
|
|
|
(e)
|
Each of the Collateral Agent and the Delegate Collateral Agent are entitled to rely on and comply with instructions given in accordance with this Clause 5.1
(
Enforcement instructions
).
|
If the
Collateral Agent or the Delegate Collateral Agent decide (each in its sole and absolute discretion) to exercise its rights of enforcement in relation to all or any part of the Shared Security, each of the ECF Creditors and the Term Loan Creditors
agrees to co-operate fully with the Collateral Agent and/or the Delegate Collateral Agent and (where applicable) the Debtor in connection with that enforcement by (without limitation) executing all documents required by the Collateral Agent and/or
the Delegate Collateral Agent.
Each
of the Collateral Agent and the Delegate Collateral Agent will give the Term Loan Facility Agents, the ECF Hedging Creditors and the Term Loan Hedging Creditors reasonable prior notice of any intended exercise of its rights of enforcement in
relation to the Shared Security.
9
|
5.4
|
Manner of enforcement
|
If
all or any part of the Shared Security is being enforced by the Collateral Agent and/or the Delegate Collateral Agent, each of the Collateral Agent and the Delegate Collateral Agent shall enforce such Shared Security in such manner (including,
without limitation, the selection of any administrator of the Debtor to be appointed by either of the Collateral Agent and the Delegate Collateral Agent) as the ECF Required Lenders (or following the ECF Discharge Date, the Term Loan Required
Lenders) shall instruct or, in the absence of any such instructions, as each of the Collateral Agent and the Delegate Collateral Agent sees fit.
|
5.5
|
Exercise of voting rights
|
|
|
(a)
|
Each ECF Creditor and Term Loan Creditor agrees with the Collateral Agent and the Delegate Collateral Agent that it will cast its vote in any proposal put to the vote
by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to the Debtor as instructed by the Collateral Agent and the Delegate Collateral
Agent.
|
|
|
(b)
|
The Collateral Agent and the Delegate Collateral Agent shall give instructions for the purposes of paragraph (a) above as directed by the ECF Required Lenders (or
following the ECF Discharge Date, the Term Loan Required Lenders).
|
To the extent permitted under applicable law and subject to Clause 5.4 (
Manner of enforcement
) and Clause 7 (
Application of
proceeds
), each of the Secured Parties and the Debtor waives all rights it may otherwise have to require that the Shared Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from
any person, or by virtue of the enforcement of any of the Shared Security be applied in any particular manner.
Each of the
Collateral Agent and the Delegate Collateral Agent and the Debtor acknowledge that, in the event that either of the Collateral Agent and the Delegate Collateral Agent enforces or is instructed to enforce the Shared Security, the duties of the
Collateral Agent and the Delegate Collateral Agent and of any Receiver or Delegate owed to the Secured Parties in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Shared
Security shall be no different to or greater than the duty that is owed by each of the Collateral Agent and the Delegate Collateral Agent, Receiver or Delegate to the Debtor under general law.
|
5.8
|
Certificates in relation to ECF Indebtedness
|
Any certificate provided by the ECF Facility Agent as to the amount of any ECF Indebtedness owed to the ECF Lenders shall be
prima facie
evidence of the existence and amount of the ECF
Indebtedness.
10
|
5.9
|
Certificates in relation to Term Loan Indebtedness
|
Any certificate provided by the Term Loan Facility Agents as to the amount of any Term Loan Indebtedness owed to the relevant Term Loan Lenders under the respective Term Loan Credit Agreements shall be
prima facie
evidence of the existence and amount of the Term Loan Indebtedness.
If
at any time any Secured Party receives or recovers the proceeds of any enforcement of any Shared Security except in accordance with Clause 7 (
Application of Proceeds
), that Secured Party will:
|
|
(a)
|
in relation to receipts and recoveries not received or recovered by way of set off, hold all amounts received or recovered on trust for the Collateral Agent and
promptly pay that amount to the Collateral Agent for application in accordance with the terms of this Deed; and
|
|
|
(b)
|
in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Collateral Agent for application in
accordance with the terms of this Deed.
|
|
7.
|
APPLICATION OF PROCEEDS
|
|
7.1
|
All amounts from time to time received or recovered by the Collateral Agent in connection with the realisation or enforcement of all or any part of the Shared Security
shall be held by the Collateral Agent on trust to apply them at any time as the Collateral Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 7), in the following order of
priority:
|
|
|
(a)
|
in discharging any sums (in respect of the Security Documents) owing to the Collateral Agent, the Delegate Collateral Agent, any Receiver or any Delegate (on a
pro
rata
basis);
|
|
|
(b)
|
in payment of all costs and expenses incurred by any Agent or Primary Creditor in connection with any action taken at the request of the Collateral Agent (on a
pro
rata
basis);
|
|
|
(c)
|
to the ECF Facility Agent in payment in or towards the ECF Indebtedness pursuant to Section 4.05 (
Application of Proceeds
) of the ECF Credit Agreement;
|
|
|
(d)
|
to each of the Term Loan Facility Agents in payment in or towards the Term Loan Indebtedness (on a
pro rata
basis across each of the Jewel Credit Facility and
Jade Credit Facility, based on the outstanding principal amount of loans under each such facility) pursuant to Section 4.05 (
Application of Proceeds
) of the relevant Term Loan Credit Agreement;
|
|
|
(e)
|
in payment in or towards the ECF Hedging Indebtedness (on a
pro rata
basis in respect of the ECF Hedging Indebtedness owed to each ECF Hedging Creditor);
|
11
|
|
(f)
|
in payment in or towards the Term Loan Hedging Indebtedness (on a
pro rata
basis in respect of the Term Loan Hedging Indebtedness owed to each Term Loan Hedging
Creditor);
|
|
|
(g)
|
if the Debtor is not under any further actual or contingent liability (other than (i) contingent liabilities for which no claim has been made and
(ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the ECF Credit Agreement) under any ECF Credit Document, Hedging Agreement or Term Loan Credit Document, in payment to any
person to whom the Collateral Agent is obliged to pay in priority to the Debtor; and
|
|
|
(h)
|
the balance, if any, in payment to the Debtor.
|
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
|
8.3
|
If, at any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any
court, then from time to time the Debtor and the Term Loan Creditors will each promptly, on demand by the Collateral Agent and at the cost of the Debtor, execute and deliver to the Collateral Agent, or procure the execution and delivery to the
Collateral Agent of, such further documents as in the opinion of the Collateral Agent are necessary to give effect to the terms of this Deed.
|
If, at any
time after its date, any provision of a Debt Document (including this Deed) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the
enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
No
failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
12
The
provisions of this Deed will not be affected by an act, omission, matter or thing which, but for this Clause 8.6, would reduce, release or prejudice the subordination and priorities expressed to be created by this Deed including (without
limitation and whether or not known to any Party):
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Debtor or other person;
|
|
|
(b)
|
the release of the Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the NCLC Group;
|
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets
of, the Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security;
|
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Debtor or other person;
|
|
|
(e)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other document or security;
|
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security;
|
|
|
(g)
|
any intermediate Payment of any of the obligation or liabilities owed by the Debtor to the Primary Creditors in whole or in part; or
|
|
|
(h)
|
any insolvency or similar proceedings.
|
|
8.7
|
Priorities not affected
|
Except as otherwise provided in this Deed the priorities referred to in Clause 2 (
Priority and Ranking
) will:
|
|
(a)
|
not be affected by any reduction or increase in the principal amount secured by the Shared Security in respect of the obligations or liabilities owed by the Debtor to
the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the obligations or liabilities owed the Debtor to the Primary Creditors or any
other circumstances;
|
|
|
(b)
|
apply regardless of the order in which or dates upon which this Deed and the other Debt Documents are executed or registered or notice of them is given to any person;
and
|
|
|
(c)
|
secure the obligations or liabilities owed by the Debtor to the Primary Creditors in the order specified, regardless of the date upon which any of those liabilities or
obligations arose or of any fluctuations in the amount of any of such outstanding liabilities or obligations.
|
13
|
9.
|
CHANGES TO THE PARTIES
|
|
9.1
|
Assignments and transfers
|
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt
Documents except as permitted by this Clause 9.
Any ECF
Lender and any Term Loan Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of this Deed if:
|
|
(a)
|
the assignee or transferee has executed an Assignment Agreement or Transfer Certificate (as each such term is defined in the ECF Credit Agreement or the relevant Term
Loan Credit Agreement) pursuant to which, amongst other things, the assignee or transferee receives the benefit of the rights and agrees that it will perform all of the obligations which are required to be performed by a Lender under the terms of
the ECF Credit Agreement or the relevant Term Loan Credit Agreement (as applicable); and
|
|
|
(b)
|
the ECF Lender or Term Loan Lender has complied with the requirements for such assignment or transfer under its ECF Credit Agreement or the relevant Term Loan Credit
Agreement, as applicable.
|
No
person shall become an Agent unless at the same time, it accedes to this Deed as an Agent pursuant to Clause 9.4 (
Creditor Accession Undertaking
).
|
9.4
|
Creditor Accession Undertaking
|
|
|
(a)
|
Subject to Clause 9.2 (
Change of Lender
), any ECF Hedging Creditor, Term Loan Hedging Creditor, or Agent that wishes to become a Party to this Deed in the
capacity as a Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Creditor Accession Undertaking.
|
|
|
(b)
|
With effect from the date of acceptance by the Collateral Agent of a Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by the relevant
acceding party or, if later, the date specified in that Creditor Accession Undertaking:
|
|
|
(i)
|
any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Collateral Agent and other Parties under this Deed and their
respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and
|
14
|
|
(ii)
|
as from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this
Deed in that capacity.
|
Each
of the Parties appoints the Collateral Agent to receive on its behalf each Creditor Accession Undertaking delivered to the Collateral Agent and the Collateral Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the
same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Deed.
The
Debtor and each Creditor irrevocably appoints the Collateral Agent and the Delegate Collateral Agent as its attorney to do anything which such person has authorised the Collateral Agent or the Delegate Collateral Agent to do under this Deed or which
such person is required to do under this Deed but has failed to do for a period of five Business Days after receiving notice from Collateral Agent or the Delegate Collateral Agent requiring it to do so.
|
11.1
|
No variation or amendment to this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
12.1
|
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“
Third Parties Rights Act
”) to enforce or to enjoy the benefit of any term of this Deed.
|
|
12.2
|
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
This Deed
may be executed in any number of counterparts and all the counterparts when executed and taken together shall constitute one and the same instrument.
|
14.1
|
Communications in Writing
|
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
15
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D
- 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
E-mail:
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail:
dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
16
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com,
or to such other address and/or number as is notified in writing by a party to the other parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original ECF Lenders, Original Jade Lenders and Original Jewel Lenders at the addressed identified with its name in Schedule 4 hereto; provided that, with
respect to all notices and other communication made by electronic mail or other electronic means, the Parties agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the
sending and receipt of information by that means and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents, the Collateral Agent and the Delegate Collateral Agent shall not be
effective until received by them or (iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Debtor to the Agents, the Collateral Agent or the Delegate
Collateral Agent, only if it is addressed in such a manner as the Agents, the Collateral Agent or the Delegate Collateral Agent shall specify for this purpose.
|
15.1
|
The perpetuity period for each trust created by this Deed shall be one hundred and twenty five (125) years from the date of this Deed.
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by English law.
17
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute relating to the existence,
validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a “
Dispute
”).
|
|
|
(b)
|
The Parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law the Debtor (unless incorporated in England and Wales):
|
|
|
(i)
|
shall appoint a process agent as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the Debtor 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 Debtor must immediately (and in any
event within five days of such event taking place) appoint another agent on terms acceptable to the ECF Facility Agent (or after the ECF Discharge Date, the Term Loan Facility Agents). Failing this, the ECF Facility Agent (or after the ECF
Discharge Date, the Term Loan Facility Agents) may appoint another agent for this purpose.
|
|
|
(c)
|
The Debtor expressly agrees and consents to the provisions of this Clause 17 and Clause 16 (
Governing Law
).
|
IN WITNESS WHEREOF
of which this Deed has been duly executed and delivered on the day and year written above.
18
SCHEDULE 1
ECF SECURITY DOCUMENTS
|
1.
|
First-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in the ECF Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of Contracts
”).
|
|
2.
|
First-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the ECF Creditors (the “
Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The ECF 2 Security Trust Deed.
|
19
SCHEDULE 2
TERM LOAN SECURITY DOCUMENTS
|
1.
|
Second-priority legal assignment of contracts dated on or about the date hereof in respect of the Construction Contract, certain of the Refund Guarantees and the
Construction Risks Insurance (each as defined in each Term Loan Credit Agreement) in favour of the Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of Contracts
”).
|
|
2.
|
Second-priority legal assignment of the refund guarantees dated on or about the date hereof in respect of certain of the Refund Guarantees issued by KfW IPEX-Bank GmbH
in favour of the Delegate Collateral Agent as security trustee on behalf of the Term Loan Creditors (the “
Term Loan Vessel 2 Assignment of KfW Refund Guarantees
”).
|
|
3.
|
The Jade Security Trust Deed.
|
|
4.
|
The Jewel Security Trust Deed.
|
20
SCHEDULE 3
FORM OF CREDITOR ACCESSION UNDERTAKING
|
To:
|
[
Insert full name of current Collateral Agent and Delegate Collateral Agent
] for themselves and each of the other parties to the Intercreditor Deed referred to
below.
|
|
[To:
|
[
Insert full name of current Agent
] as Agent.]
|
From: [
Acceding Creditor/Agent
]
THIS UNDERTAKING is made on [
date
] by [
insert
full name of new Creditor / Agent
] (the “
Acceding [Creditor / Agent]
”) in relation to the intercreditor deed (the “
Intercreditor Deed
”) dated [
—
] between KfW
IPEX-Bank GmbH as ECF Facility Agent and Term Loan Facility Agents, the parties named therein as ECF Lenders, the parties named therein as the Jade Lenders, the parties named therein as the Jewel Lenders, Breakaway Two, Ltd. as Debtor, KfW IPEX-Bank
GmbH acting as Collateral Agent and Deutsche Schiffsbank Aktiengesellschaft as Delegate Collateral Agent.
Terms defined in the Intercreditor
Deed shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the
Acceding [
Creditor
/ Agent] being accepted as a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] for the purposes of the Intercreditor Deed, the Acceding [
Creditor
/ Agent]
confirms that, as from [date], it intends to be party to the Intercreditor Deed as a [
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
] and undertakes to perform all the obligations expressed in
the Intercreditor Deed to be assumed by a [[
ECF Facility Agent/Term Loan Facility Agent / ECF Hedging Creditor / Term Loan Hedging Creditor
]] and agrees that it shall be bound by all the provisions of the Intercreditor Deed, as if it had been
an original party to the Intercreditor Deed.
This Undertaking and any non-contractual obligations arising out of or in connection with it are
governed by English law.
THIS UNDERTAKING
has been entered into on the date stated above.
Acceding [
Creditor
/ Agent]
|
|
|
|
[EXECUTED
as a
DEED]
[
insert full name of Acceding Creditor / Agent
]
|
|
|
|
|
By:
|
|
|
|
|
|
Address:
|
|
Fax:
|
21
Accepted by the Collateral Agent
___________________________
for and on behalf of KfW IPEX-Bank GmbH
Date:
22
SCHEDULE 4
ADDRESS DETAILS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile:
+49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021
Oslo, Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28
94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14 5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail: alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 /
4037
Fax: +49 69 7431 4466 / 2944
Attn: Ms Claudia Wenzel /
Mr Christian
Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail:
arne.berglund@nordea.com
|
23
SIGNATORIES
THE ECF FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
24
THE JADE FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE JEWEL FACILITY AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL ECF LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC
,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL JADE LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE ORIGINAL JEWEL LENDERS
Executed as a deed by
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by
[name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
DNB NOR BANK ASA,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
HSBC BANK PLC,
acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
THE DEBTOR
Signed as a deed on behalf of
BREAKAWAY
TWO, LTD.
, a company incorporated in
Bermuda, by [
full name(s) of person(s)
signing
], being [a] person[s] who, in
accordance with the laws of that territory,
[is][are] acting under the authority of the company
|
|
|
|
|
Authorised [signatory] [signatories]
|
THE COLLATERAL AGENT
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
EXHIBIT N
THE DELEGATE COLLATERAL AGENT
Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by [
name of director
]:
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
|
|
|
|
|
[
Signature of Director
]
|
|
Director
|
EXHIBIT M-3
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
DATED NOVEMBER 2010
NORWEGIAN JEWEL LIMITED
(as owner)
-and-
HSBC BANK PLC
(as first mortgagee)
-and-
DnB NOR BANK ASA
(as second mortgagee)
-and-
DnB NOR BANK ASA
(as third mortgagee)
-and-
KFW IPEX-BANK GMBH
(as fourth mortgagee)
FOURTH DEED OF
CO-ORDINATION
m.v.
“
NORWEGIAN JEWEL
”
STEPHENSON HARWOOD
One, St Paul’s Churchyard
London EC4M 8SH
Tel: +44 (0)20 7329 4422
Fax: +44 (0)20 7329 7100
Ref:
1253/1647/47-02885/47-02886/47-02887/49-00640
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
1
|
|
Definitions and Interpretation
|
|
|
2
|
|
|
|
|
|
|
2
|
|
Consent of Senior Mortgagees
|
|
|
4
|
|
|
|
|
|
|
3
|
|
Subordination
|
|
|
4
|
|
|
|
|
|
|
4
|
|
Priority
|
|
|
5
|
|
|
|
|
|
|
5
|
|
Covenants of the Fourth Mortgagee
|
|
|
6
|
|
|
|
|
|
|
6
|
|
Notice to Third Parties
|
|
|
7
|
|
|
|
|
|
|
7
|
|
Sale of Vessel
|
|
|
7
|
|
|
|
|
|
|
8
|
|
Insurance Proceeds
|
|
|
8
|
|
|
|
|
|
|
9
|
|
Payment of Junior Indebtedness
|
|
|
8
|
|
|
|
|
|
|
10
|
|
Senior Mortgagees’ Rights
|
|
|
9
|
|
|
|
|
|
|
11
|
|
Assignment
|
|
|
9
|
|
|
|
|
|
|
12
|
|
Consents and Approvals
|
|
|
9
|
|
|
|
|
|
|
13
|
|
Partial Invalidity
|
|
|
10
|
|
|
|
|
|
|
14
|
|
Further Assurance
|
|
|
10
|
|
|
|
|
|
|
15
|
|
Miscellaneous
|
|
|
10
|
|
|
|
|
|
|
16
|
|
Notices
|
|
|
10
|
|
|
|
|
|
|
17
|
|
Counterparts
|
|
|
11
|
|
|
|
|
|
|
18
|
|
Law and Jurisdiction
|
|
|
11
|
|
|
|
|
|
SCHEDULE 1
|
|
|
14
|
|
|
|
|
|
SCHEDULE 2
|
|
|
17
|
|
|
|
|
|
SCHEDULE 3
|
|
|
23
|
|
|
|
|
|
SCHEDULE 4
|
|
|
27
|
|
DEED OF CO-ORDINATION
Dated: November 2010
BETWEEN:
|
(1)
|
NORWEGIAN JEWEL LIMITED
, a company incorporated under the laws of the Isle of Man and having its registered office at International House, Castle Hill, Victoria
Road, Douglas, Isle of Man, British Isles as owner (the “
Owner
”);
|
|
(2)
|
HSBC BANK PLC
of 8 Canada Square, London, E14 5HQ as trustee for the parties set out in Schedule 1 (the “
First Mortgagee
”);
|
|
(3)
|
DnB NOR BANK ASA
acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the Guaranteed Trustees (the “
Second
Mortgagee
”);
|
|
(4)
|
DnB NOR BANK ASA
acting through its office at Stranden 21, NO-0021 Oslo, Norway as trustee for itself and the Non-Guaranteed Trustee (the “
Third
Mortgagee
” and together with the First Mortgagee and the Second Mortgagee the “
Senior Mortgagees
”); and
|
|
(5)
|
KFW IPEX-BANK GMBH
of Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany as trustee for itself and the parties set out in Schedule 4 (the
“
Fourth Mortgagee
”).
|
WHEREAS
:
|
(A)
|
The Owner is the absolute owner of all the sixty four sixty fourth (64/64
th
) shares of and in the motor vessel “NORWEGIAN JEWEL” (the “
Vessel
”) registered in the
name of the Owner under the Bahamian flag at the port of Nassau with Official Number 8000877.
|
|
(B)
|
On 4 August 2005 the Owner executed a first priority Bahamian statutory mortgage over all the shares in the Vessel (the “
First Mortgage
”) in
favour of the First Mortgagee in its capacity as trustee for the parties set out in Schedule 1;
|
|
(C)
|
On 2 April 2009 the Owner executed a second priority Bahamian statutory mortgage over all the shares in the Vessel (the “
Second Mortgage
”) in
favour of the Second Mortgagee in its capacity as trustee for itself and the Guaranteed Trustees;
|
|
(D)
|
On 2 April 2009 the Owner executed a third priority Bahamian statutory mortgage over all the shares in the Vessel (the “
Third Mortgage
”) in favour
of the Third Mortgagee in its capacity as trustee for itself and the Non-Guaranteed Trustee;
|
|
(E)
|
The Owner proposes to execute a fourth priority Bahamian statutory mortgage over all of the shares in the Vessel (the “
Fourth Mortgage
”) upon the terms
and conditions therein in favour of the Fourth Mortgagee in its capacity as collateral agent for itself and the parties set out in Schedule 4.
|
|
(F)
|
The Parties have agreed to enter into this deed of co-ordination (this “
Deed
”) (among other things) to regulate how the provisions of clause 11 of the
collateral deed of covenants to the Fourth Mortgage shall operate.
|
THIS DEED WITNESSES
as follows:
|
1
|
Definitions and Interpretation
|
“
Assigned
Property
” means the Insurances, the Charter and the Earnings.
“
Business Day
” means a day on which
banks are open for the transaction of business of the nature contemplated by each Loan Agreement in New York, London, Frankfurt am Main and Oslo.
“
Earnings
” means all hires, freights, pool income and other sums payable to or for the account of the Owner or the Bareboat Charterer in respect of the Vessel including (without
limitation) all remuneration for salvage and towage services, demurrage and detention moneys, contributions in general average, compensation in respect of any requisition for hire, and damages and other payments (whether awarded by any court or
arbitral tribunal or by agreement or otherwise) for breach, termination or variation of any contract for the operation, employment or use of the Vessel.
“
Guaranteed Trustees
” means the so-named parties referred to in Schedule 2.
“
Insurances
” means all policies and contracts of insurance (including all entries in protection and indemnity or war risks associations) which are from time to time taken out or entered
into in respect of or in connection with the Vessel or her increased value or the Earnings and (where the context permits) all benefits under such contracts and policies, including all claims of any nature and returns of premium.
“
Junior Indebtedness
” means the aggregate from time to time of the indebtedness of the Owner to the Fourth Mortgagee
under or pursuant to the Junior Security Documents, whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent. For the avoidance of doubt, indebtedness of persons other than the Owner (including
NCLC and Euler Hermes Kreditversicherungs-AG) shall not constitute Junior Indebtedness
.
“
Junior Loan
Agreement
” means the loan agreement referred to in Schedule 4.
“
Junior Loans
” means the loans
made pursuant to the Junior Loan Agreement and “
Junior Loan
” means any one of them.
“
Junior Security
Documents
” means the documents referred to in Schedule 4 and annexed hereto.
“
Loan Agreement
” means
each Senior Loan Agreement and the Junior Loan Agreement.
“
Mandatory Prepayment
” means the prepayment of the
relevant part of the Junior Loans in full if (a) the construction contract in respect of a New Vessel is terminated prior to the delivery date of such New Vessel (b) the delivery date of the relevant New Vessel does not occur on or before
(I) in the case of the part of the Junior Loans related to the first New Vessel, 23 December 2013 and (II) in the case of the part of the Junior Loans related to the second New Vessel, 8 December 2014 (c) either new export credit
facility to be entered into by the purchasers of the New Vessels shall terminate or (d) certain insolvency events occur with respect to the yard that is building the New Vessels, in each case, as more fully described in and in accordance with
the terms of the Junior Loan Agreement.
2
“
NCLC
” means NCL Corporation Ltd. of Milner House, 18 Parliament Street,
Hamilton HM 12, Bermuda.
“
New Vessels
” means the two (2) newbuild cruise vessels each not larger than
m.v. “NORWEGIAN EPIC” (ex hull no C33 (sometimes known as D33) at STX France S.A.) in terms of number of passenger cabins or gross or net tonnage, not on order by NCLC or any of its wholly owned subsidiaries on the Effective Date (as
defined in supplemental deeds dated 22 July 2010 to each of the Senior Loan Agreements).
“
Non-Guaranteed
Trustee
” means the so-named party referred to in Schedule 3.
“
Party
” means each party to this Deed.
“
Prior Co-ordination Deeds
” means the deed dated 2 April 2009 made between (among others) the First
Mortgagee, the Second Mortgagee and the Owner in relation to the Senior Security Documents referred to in Schedule 1 and Schedule 2 and the deed dated 2 April 2009 made between (among others) the First Mortgagee, the Second Mortgagee, the Third
Mortgagee and the Owner in relation to the Senior Security Documents referred to in Schedule 1, Schedule 2 and Schedule 3.
“
Security Period
” means the period beginning on the date of this Deed and ending on the date when the whole of the Senior
Indebtedness has been repaid in full.
“
Senior Indebtedness
” means the aggregate from time to time of the
indebtedness of the Owner to the Senior Mortgagees under or pursuant to any of the Senior Security Documents whether in respect of principal, interest, costs or otherwise and whether present, future, actual or contingent.
“
Senior Loan Agreements
” means each loan agreement referred to in Schedule 1, Schedule 2 and Schedule 3 and
“
Senior Loan Agreement
” means any one of them.
“
Senior Security Documents
” means the
documents referred to in Schedule 1, Schedule 2 and Schedule 3 and any other document which may at any time be executed by any person as security for the payment of all or any part of the Senior Indebtedness.
“
Supplemental Deeds
” means the supplemental deeds to the Senior Loan Agreements referred to in Schedule 1 and Schedule 2
entered into on or around the date hereof.
|
|
1.2.1
|
words denoting the plural number include the singular and vice versa;
|
|
|
1.2.2
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or
authorities and vice versa;
|
|
|
1.2.3
|
references to Clauses are references to clauses of this Deed;
|
3
|
|
1.2.4
|
references to this Deed include the recitals to this Deed;
|
|
|
1.2.5
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Deed;
|
|
|
1.2.6
|
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; and
|
|
|
1.2.7
|
references to any party include its successors, transferees and assignees.
|
|
2
|
Consent of Senior Mortgagees
|
On the terms and subject to the conditions contained in this Deed, the Senior Mortgagees consent to the execution and, where appropriate, registration of the Junior Security Documents substantially in the
form of the drafts set out in the annexes hereto.
|
|
3.1
|
In consideration of the consent of the Senior Mortgagees contained in Clause 2, the Fourth Mortgagee agrees with the Senior Mortgagees that, at all times during the
Security Period, all rights and powers of the Fourth Mortgagee in respect of the Junior Indebtedness and all rights and powers of the Fourth Mortgagee against the Owner, the Vessel and the Assigned Property (whether pursuant to the Junior Security
Documents or otherwise) shall be subordinated to all rights and powers of the Senior Mortgagees in respect of the Senior Indebtedness and all rights, powers, discretions and remedies of the Senior Mortgagees under or pursuant to the Senior Security
Documents.
|
|
|
3.2
|
The Owner agrees that its obligations in respect of the Junior Indebtedness are, and shall throughout the Security Period be, subordinated to its obligations in respect
of the Senior Indebtedness.
|
|
|
3.3
|
The Owner and the Fourth Mortgagee agree that no repayments of principal or payments of interest may be made in respect of the Junior Indebtedness during the Security
Period, other than:
|
|
|
3.3.1
|
in the amounts and on the dates set out in the Junior Loan Agreement provided that no repayments of principal or payments of interest may be made in respect of the
Junior Indebtedness at any time after a Senior Mortgagee has given notice to the Owner and the Fourth Mortgagee of the occurrence of an event of default (howsoever described in the relevant Senior Loan Agreement); and
|
|
|
3.3.2
|
a Mandatory Prepayment provided that a Mandatory Prepayment may not be made unless, at the relevant time, (x) the lenders under each of the Senior Loan Agreements
receive evidence satisfactory to them from NCLC that (after giving effect to any contributions from NCLC) the Owner and Pride of Hawaii, LLC will be able to meet their respective obligations for the next twelve (12) months under the Senior Loan
Agreement referred to in Schedule 1 and the Senior Loan Agreement referred to in Schedule 2, Part III if the Mandatory Prepayment is made and (y) the Senior Mortgagees so agree in accordance with the Supplemental Deeds (if applicable).
|
4
|
|
3.4
|
The Fourth Mortgagee undertakes to hold all sums received by it under or pursuant to the Junior Security Documents (other than sums payable to it, or which it is
permitted to receive, pursuant to this Deed) on trust for the Senior Mortgagees to be applied by the Senior Mortgagees:
|
|
|
3.4.1
|
firstly in or towards payment of the Senior Indebtedness; and
|
|
|
3.4.2
|
secondly by way of payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness as more particularly described in Clause 8.2.3.
|
|
|
3.5
|
If an Event of Default (as defined in any of the Senior Loan Agreements) shall occur, the relevant Senior Mortgagee shall, as soon as is reasonably practicable after
becoming aware of the same, advise the Fourth Mortgagee of the same.
|
|
|
3.6
|
If an Event of Default (as defined in the Junior Loan Agreement) shall occur, the Fourth Mortgagee shall, as soon as is reasonably practicable after becoming aware of
the same, advise the Senior Mortgagees of the same.
|
|
|
3.7
|
Any certificate or statement signed by an authorised signatory of a Senior Mortgagee purporting to show the amount of the relevant Senior Indebtedness (or any part of
the relevant Senior Indebtedness) or any other amount referred to in any of the Senior Security Documents shall, save for manifest error or on any question of law, be conclusive evidence as against the Owner and the Fourth Mortgagee of that amount.
|
|
|
3.8
|
For the avoidance of doubt the application of monies received by a Senior Mortgagee in relation to the Senior Indebtedness shall be governed and regulated by the Prior
Co-ordination Deeds.
|
|
|
4.1
|
The Fourth Mortgagee agrees that the Senior Security Documents shall throughout the Security Period constitute a continuing security for the whole of the Senior
Indebtedness, which security shall be senior in priority to the security constituted by the Junior Security Documents, notwithstanding that any of the Senior Indebtedness may have arisen after the execution and/or registration of any of the Junior
Security Documents and notwithstanding any fluctuations in the amount of the Senior Indebtedness.
|
|
|
4.2
|
The Fourth Mortgagee acknowledges the obligation of the Owner to satisfy the marginal security covenant contained in the Senior Loan Agreement referred to in
Schedule 1 and irrevocably consents to the granting of the further security referred to in that clause and irrevocably acknowledges that any further security granted pursuant to that clause will automatically form part of the Senior Security
Documents and be subject to all the terms of this Deed applicable to the Senior Security Documents (including, without limitation, Clause 4.1).
|
5
|
5
|
Covenants of the Fourth Mortgagee
|
|
|
5.1
|
The Fourth Mortgagee covenants with the Senior Mortgagees that during the Security Period:
|
|
|
5.1.1
|
irrespective of its legal rights, and subject to Clause 5.2, it will not arrest, take possession of, appoint any receiver in respect of, manage or sell the Vessel with
or without judicial proceedings, or take any steps to enforce any of its rights under or pursuant to the Junior Security Documents without having first either paid to the Senior Mortgagees the whole of the Senior Indebtedness or obtained the prior
written consent of the Senior Mortgagees in accordance with the Supplemental Deeds (if applicable);
|
|
|
5.1.2
|
it will not take any proceedings to place the Owner into liquidation, administration or receivership nor take any analogous steps without having first either paid to
the Senior Mortgagees the whole of the Senior Indebtedness or obtained the prior written consent of the Senior Mortgagees in accordance with the Supplemental Deeds (if applicable); and
|
|
|
5.1.3
|
it will not contest nor attempt to contest the security constituted by, or any of the rights of any Senior Mortgagee or any party for which a Senior Mortgagee is
trustee under or pursuant to, the Senior Security Documents,
|
PROVIDED THAT
nothing in this Clause 5.1
shall prevent the Fourth Mortgagee from filing any action or proceedings necessary for the preservation of its rights, or to avoid the loss of or extinction of any of its rights, nor from demanding payment of any of the Junior Indebtedness or
supporting any proceedings arising from or relating to the arrest or detention of the Vessel (whether at the instigation of the Senior Mortgagees or any other person) with a view (in each case) to substantiating, preserving or protecting its
interest as fourth mortgagee of the Vessel and/or fourth priority assignee of the Assigned Property, but in any such case the Fourth Mortgagee shall give the earliest possible notice to the Senior Mortgagees of its intention to take such action and
shall comply with all requirements of the Senior Mortgagees with respect to the preservation of the Senior Mortgagees’ rights as first priority, second priority and third priority (respectively) mortgagee of the Vessel and as first priority,
second priority and third priority (respectively) assignee of the Assigned Property (which shall include the cessation of, or withdrawal by the Fourth Mortgagee from, any proceedings in the event that the Senior Mortgagees so require).
|
|
5.2
|
The Fourth Mortgagee covenants with the Senior Mortgagees that during the Security Period:
|
|
|
(a)
|
it will procure that there are no amendments, supplements or replacements made to any of the Junior Security Documents which would increase the Euro maximum principal
amount of the Junior Loans under the Junior Loan Agreement (or the Dollar equivalent thereof except as provided for by the Junior Loan Agreement as at the date of this Deed) or would increase the margin under the Junior Loan Agreement by more than
[*] per annum without in either case the prior written consent of the First Mortgagee and provided that if such increase were made (i) no provision of a Senior Loan Agreement would be breached and (ii) the Senior Security Documents or the
security and other rights constituted and conferred on any Senior Mortgagee by the Senior Security Documents would not, or may not, be prejudiced; and
|
6
|
|
(b)
|
it will procure that no parties to the Junior Loan Agreement shall seek to secure the payment of any amount (other than an amount due pursuant to the Junior Loan
Agreement) by the Junior Security Documents; and
|
|
|
(c)
|
subject to the proviso in Clause 5.1, it shall not take any action or refrain from taking any action as a result of which the Senior Security Documents or the security
and other rights constituted and conferred on any Senior Mortgagee by the Senior Security Documents are, or may be, prejudiced.
|
|
6
|
Notice to Third Parties
|
The Fourth Mortgagee undertakes to the Senior Mortgagees that the Fourth Mortgagee will not at any time during the Security Period give
any notice to any third party inconsistent with the rights and powers of the Senior Mortgagees under or pursuant to the Senior Security Documents. In particular, but without limitation, any notice of the assignment by the Owner to the Fourth
Mortgagee of any of the Assigned Property, and any loss payable clause in favour of the Fourth Mortgagee endorsed on any of the Insurances, shall be expressed as being subject to the prior rights of the Senior Mortgagees as first, second and third
assignee respectively and shall be approved by the Senior Mortgagees prior to being given to any third party or endorsed on any of the Insurances.
|
|
7.1
|
If the Senior Mortgagees decide (in their sole and absolute discretion) to exercise their power of sale of the Vessel, or if the Owner (with the prior consent of the
Senior Mortgagees) wishes to sell the Vessel, the Fourth Mortgagee agrees to co-operate fully with the Senior Mortgagees (acting in accordance with the Prior Co-ordination Deeds) and the Owner in connection with that sale by (without limitation)
executing all documents required by the Senior Mortgagees not later than the date of completion of the sale to enable the Senior Mortgagees or the Owner to transfer title in the Vessel to the purchaser free of all encumbrances, debts and liens in
favour of the Fourth Mortgagee.
|
|
|
7.2
|
The Senior Mortgagees will give the Fourth Mortgagee reasonable prior notice of any intended sale of the Vessel and a further notice when the price and terms of sale
have been agreed in outline but before any binding agreement for the sale has been entered into. The Fourth Mortgagee will within five (5) Business Days from the date of such further notice:
|
|
|
7.2.1
|
give its consent to the sale at the agreed price and on the agreed terms; or
|
|
|
7.2.2
|
pay to the relevant Senior Mortgagee a sum equal to the lower of the agreed sale price of the Vessel and the amount of the Senior Indebtedness.
|
On receipt of payment in full of the sum referred to in Clause 7.2.2 the Senior Mortgagees will at the
expense of the Fourth Mortgagee procure the assignment or transfer by the Senior Mortgagees to or to the order of the Fourth Mortgagee of their rights under the Senior Security Documents.
|
|
7.3
|
If the Senior Mortgagees do not receive the consent or payment required by Clause 7.2 within the time stipulated by Clause 7.2 the Fourth Mortgagee will be
deemed to have given its consent to the proposed sale.
|
7
|
|
7.4
|
At or before the time of delivery of the Vessel to any purchaser pursuant to Clause 7.2, notwithstanding Clause 7.1, the Fourth Mortgagee will deliver to the
Senior Mortgagees all other documents required by the Senior Mortgagees in recordable form for registration (if necessary) to enable the Senior Mortgagees and/or the Owner to provide the purchaser with evidence that the Vessel is free of all
encumbrances, debts and liens in favour of the Fourth Mortgagee.
|
|
|
7.5
|
The proceeds of any sale of the Vessel by the Senior Mortgagees or by the Owner shall be held in trust by the Senior Mortgagees to be applied as follows:
|
|
|
7.5.1
|
first, in or towards reimbursement of the expenses of the Senior Mortgagees in connection with the sale, including claims ranking in priority to the claims of the
Senior Mortgagees and other costs and claims necessary in the sole and absolute opinion of the Senior Mortgagees for the finalisation of the sale and collection of the sale proceeds;
|
|
|
7.5.2
|
secondly, in or towards payment of the Senior Indebtedness;
|
|
|
7.5.3
|
thirdly, by payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness; and
|
|
|
7.5.4
|
fourthly, by payment to the Owner and/or to anyone else entitled to them.
|
|
|
8.1
|
The parties to this Deed agree that the proceeds of the Insurances shall be applied in accordance with the loss payable clause(s) endorsed on the Insurances from time
to time.
|
|
|
8.2
|
All proceeds of the Insurances received by the Senior Mortgagees shall be held in trust by the Senior Mortgagees to be applied as follows:
|
|
|
8.2.1
|
first, in or towards reimbursement of the expenses of the Senior Mortgagees in connection with the collection of the proceeds;
|
|
|
8.2.2
|
secondly, by application in or towards payment of the Senior Indebtedness or otherwise in accordance with the Senior Security Documents;
|
|
|
8.2.3
|
thirdly, by payment to the Fourth Mortgagee for application in or towards payment of the Junior Indebtedness or otherwise in accordance with the Junior Security
Documents; and
|
|
|
8.2.4
|
fourthly, by payment to the Owner and/or to anyone else entitled to them.
|
|
9
|
Payment of Junior Indebtedness
|
Promptly following payment to the Fourth Mortgagee of the full amount of the Junior Indebtedness the Fourth Mortgagee will do whatever is necessary to discharge the Junior Security Documents and to
release the Owner from any further obligations under or pursuant to the Junior Security Documents.
8
|
10
|
Senior Mortgagees’ Rights
|
|
|
10.1
|
Subject to the Prior Co-ordination Deeds, any Senior Mortgagee may at any time and from time to time without prejudicing its rights under or pursuant to this Deed or
the Senior Security Documents and without consulting with or obtaining the consent of the Fourth Mortgagee:
|
|
|
10.1.1
|
amend, supplement or replace any of the Senior Security Documents or agree to do so (other than any amendment which would increase the maximum principal amount of any
loan under a Senior Loan Agreement, in respect of which the consent of the Fourth Mortgagee shall be required);
|
|
|
10.1.2
|
(subject to Clause 11.2), assign, novate, transfer or grant participations in the Senior Indebtedness or its rights under or pursuant to the Senior Security Documents;
|
|
|
10.1.3
|
allow to the Owner or any other person time or indulgence (including, without limitation, allowing delayed repayments under the relevant Senior Loan Agreement);
|
|
|
10.1.4
|
renew, vary, release or refrain from enforcing or exercising its rights under the Senior Security Documents; or
|
|
|
10.1.5
|
compound with the Owner.
|
|
|
10.2
|
No failure to exercise, nor delay in exercising, on the part of a Senior Mortgagee, any right or remedy under or pursuant to any of the Senior Security Documents, nor
any actual or alleged course of dealing between a Senior Mortgagee and the Owner, shall operate as a waiver of, or acquiescence in, any default on the part of the Owner unless expressly agreed to in writing by the Senior Mortgagee, nor shall any
single or partial exercise by a Senior Mortgagee of any right or remedy preclude any other or further exercise of that right or remedy, or the exercise by the Senior Mortgagee of any other right or remedy.
|
|
|
11.1
|
The Fourth Mortgagee shall not assign nor transfer any of its right, title or interest in any of the Junior Security Documents without, in each case, the Fourth
Mortgagee having first procured that any such assignee or transferee will comply with, agree to be bound by and perform all of the obligations of the Fourth Mortgagee under this Deed.
|
|
|
11.2
|
None of the Senior Mortgagees shall assign nor transfer any of its right, title or interest in any of the Senior Security Documents without that Senior Mortgagee having
first procured that any such assignee or transferee will comply with, agree to be bound by and perform all of the obligations of that Senior Mortgagee under this Deed.
|
|
12
|
Consents and Approvals
|
Where any act requires the consent or approval of the Senior Mortgagees under the terms of any of the Senior Security Documents and the
same or a similar act requires the consent or approval of the Fourth Mortgagee under any of the Junior Security Documents, the consent or approval of the Senior Mortgagees shall be deemed also to constitute the consent or approval of the Fourth
Mortgagee.
9
If,
at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
If, at
any time, any provision of this Deed is or becomes invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any court, then from time to time the Owner and the Fourth Mortgagee will each promptly, on
demand by the Senior Mortgagees and at the cost of the Owner, execute and deliver to the Senior Mortgagees, or procure the execution and delivery to the Senior Mortgagees of, such further documents as in the opinion of the Senior Mortgagees are
necessary to give effect to the terms of this Deed.
|
|
15.1
|
The rights of the Senior Mortgagees under or pursuant to this Deed shall not be affected by any change in the constitution of the Owner or by the liquidation,
bankruptcy or insolvency of the Owner.
|
|
|
15.2
|
No variation or amendment of this Deed shall be valid unless in writing and signed on behalf of each of the Parties.
|
|
|
15.3
|
Other than the parties set out in Schedule 1, Schedule 2, Schedule 3 and Schedule 4, a person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.
|
|
|
16.1
|
Any communication to be made under or in connection with this Deed shall be made in writing in the English language and sent by fax or letter addressed:
|
|
|
16.1.1
|
in the case of a Senior Mortgagee to it at its address as set out in Schedule 1, Schedule 2 or Schedule 3 of this Deed (as the case may be); and
|
|
|
16.1.2
|
in the case of the Fourth Mortgagee to it at Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany (marked for the attention of Ms Claudia Wenzel / Mr Christian
Schweiger at fax no: +49 69 7431 3768 / 2944 and email: claudia.wenzel@kfw.de / christian.schweiger@kfw.de); and
|
|
|
16.1.3
|
in the case of the Owner to it at c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of the
Chief Financial Officer and the Legal Department) (but one (1) copy shall suffice) with a copy to the Investors c/o Apollo Management, LP, 9 West 57
th
Street, 43
rd
Floor, New York, NY 10019,
|
10
|
|
United States of America (marked for the attention of Mr Steve Martinez) (fax no: +1 305 436 4140 (marked for the attention of the Chief Financial Officer) and +1 305 436 4117
(marked for the attention of the Legal Department) with a copy to (i) the Investors c/o Apollo Management, LP at +1 212 515 3288 (marked for the attention of Mr Steve Martinez) and (ii) O’Melveny & Myers LLP at fax
no. +1 212 326 2061 (marked for the attention of Mr Brad Finkelstein));
|
or to such other address and/or
fax number as any Party may designate for itself by written notice to the others provided that if the copy of any communication is not received by the addressee, it shall not affect the deemed making or delivery of the communication.
|
|
16.2
|
Any communication made pursuant to Clause 16.1 will only be effective:
|
|
|
16.2.1
|
if by way of fax, when received in legible form; or
|
|
|
16.2.2
|
if by letter, when it has been left at the relevant address or five (5) days after being deposited in the post postage prepaid in an envelope addressed to the
relevant address.
|
This Deed
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 Deed.
|
|
18.1
|
This Deed and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with English law.
|
|
|
18.2
|
For the exclusive benefit of the Senior Mortgagees, the parties to this Deed irrevocably agree that the courts of England are to have exclusive jurisdiction to settle
any dispute:
|
|
|
18.2.1
|
arising from or in connection with this Deed; or
|
|
|
18.2.2
|
relating to any non-contractual obligations arising from or in connection with this Deed and that any proceedings may be brought in those courts.
|
|
|
18.3
|
Nothing contained in this Clause shall limit the right of the Senior Mortgagees to commence any proceedings under or pursuant to this Deed in any other court of
competent jurisdiction nor shall the commencement of any proceedings against the Owner or the Fourth Mortgagee in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
|
|
|
18.4
|
The Owner and the Fourth Mortgagee each irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any
court referred to in this Clause and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding
on it and may be enforced in the courts of any other jurisdiction.
|
11
|
|
18.5
|
Without prejudice to any other mode of service allowed under any relevant law:
|
|
|
18.5.1
|
the Owner irrevocably appoints EC3 Services Limited whose registered office is presently at 51 Eastcheap, London EC3M 1JP as its agent for service of process in
relation to any proceedings before the English courts;
|
|
|
18.5.2
|
the Fourth Mortgagee irrevocably appoints its London office presently at 29th Floor, Abbey Business Centre, 30 St Mary Axe, London EC3A 8EP as its agent for service of
process in relation to any proceedings before the English courts; and
|
|
|
18.5.3
|
the Owner and the Fourth Mortgagee each agrees that failure by a process agent to notify it of the process will not invalidate the proceedings concerned.
|
IN WITNESS
of which this Deed has been duly executed and delivered the day and year first before written.
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by
NORWEGIAN JEWEL LIMITED
|
|
)
|
|
|
|
acting by
|
|
)
|
|
|
|
|
|
)
|
|
|
|
its duly authorised attorney-in-fact
|
|
)
|
|
|
|
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by
HSBC BANK PLC
|
|
)
|
|
|
|
as the First Mortgagee
|
|
)
|
|
|
|
acting by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
|
|
)
|
|
|
|
its duly authorised attorney-in-fact
|
|
)
|
|
|
|
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by
DnB NOR BANK ASA
|
|
)
|
|
|
|
as the Second Mortgagee
|
|
)
|
|
|
|
acting by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
|
|
)
|
|
|
|
its duly authorised attorney-in-fact
|
|
)
|
|
|
|
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by
DnB NOR BANK ASA
|
|
)
|
|
|
|
as the Third Mortgagee
|
|
)
|
|
|
|
acting by Danae Zoi Mariel Ugolini
|
|
)
|
|
|
|
|
|
)
|
|
|
|
its duly authorised attorney-in-fact
|
|
)
|
|
|
|
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
|
|
)
|
|
|
|
by
KFW IPEX-BANK GMBH
|
|
)
|
|
|
|
as the Fourth Mortgagee
|
|
)
|
|
|
|
acting by
|
|
)
|
|
|
|
|
|
)
|
|
|
|
its duly authorised
|
|
)
|
|
|
|
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
|
13
SCHEDULE 1
Senior Security Documents
First priority Bahamian statutory mortgage and collateral deed
of covenants dated 4 August 2005
First assignment of the Earnings dated 4 August 2005
First assignment of the Insurances dated 4 August 2005
Part I
USD334,050,000 Secured Loan Agreement dated 20 April 2004
as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
As trustee for:
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
|
(as trustee and agent)
|
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured Export and Trade
Finance
Kaiserplatz
60261 Frankfurt
am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
|
(as Hermes agent)
|
14
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
OVERSEA-CHINESE BANKING
CORPORATION
LIMITED
Singapore Branch
65
Chulia Street #10-00
Singapore 049513
|
|
|
|
|
Fax:
|
|
+65 6536 6449/6532 5347
|
|
Attn:
|
|
Ms Lee King Lan/Ms Elaine Lam
|
|
Email:
|
|
LeeKingLan@ocbc.com/LamSYElaine@ocbc.com
|
15
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of
Germany
|
|
|
|
|
Fax:
|
|
+49 69 74221 197
|
|
Attn:
|
|
Mr Stephan Bachmann
|
|
Email:
|
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
|
|
|
|
Fax:
|
|
+852 2868 1448
|
|
Attn:
|
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
16
SCHEDULE 2
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Second priority Bahamian statutory mortgage and collateral deed of covenants dated 2 April 2009
Second assignment of the Earnings dated 2 April 2009
Second assignment of the Insurances dated 2 April 2009
Part I
EUR258,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated from time to time
Trustee
HSBC BANK
PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
As trustee for:
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured
Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of
Germany
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
(as Hermes agent)
17
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
Part II
EUR40,000,000 Secured Loan Agreement dated 4 April 2003 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
18
As trustee for:
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured
Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of
Germany
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
(as Hermes agent)
and the following as lenders:
COMMERZBANK
AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
19
DVB BANK SE
Parklaan 2
3016 BB Rotterdam
The Netherlands
|
|
|
|
|
Fax:
|
|
+5999 4652366
|
|
Attn:
|
|
LAM/Eric Maduro
|
|
Email:
|
|
lam.curacao@dvbbank.com/james.neira@dvbbank.com
|
Part III
EUR308,130,000 Secured Loan Agreement dated 20 April 2004 as amended and/or restated from time to time
Trustee
HSBC BANK PLC
Project and Export Finance
8
Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
As trustee for:
HSBC BANK PLC
Project
and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
(as trustee and agent)
COMMERZBANK
AKTIENGESELLSCHAFT
Corporate Banking
Structured
Export and Trade Finance
Kaiserplatz
60261 Frankfurt am Main
Federal Republic of
Germany
|
|
|
|
|
Fax:
|
|
+49 69 1362 3742
|
|
Attn:
|
|
Mr Klaus-Dieter Schmedding
|
|
Email:
|
|
exportfinance@commerzbank.com
|
(as Hermes agent)
20
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global Shipping
Domstrasse 18
20095 Hamburg
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
|
|
|
|
Fax:
|
|
+44 (0)20 7992 4428
|
|
Attn:
|
|
Mr Alan Marshall
|
|
Email:
|
|
alan.p.marshall@hsbcib.com
|
KFW
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
DnB NOR BANK
ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
21
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
Taunusanlage 14
60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
|
|
Fax:
|
|
+49 69 74221 197
|
|
Attn:
|
|
Mr Stephan Bachmann
|
|
Email:
|
|
stephan.bachmann@ca-cib.com
|
with a copy to:
CREDIT AGRICOLE ASIA SHIPFINANCE LIMITED
|
|
|
|
|
Fax:
|
|
+852 2868 1448
|
|
Attn:
|
|
Mr Terence Yuen/Ms Iris Lai
|
|
Email:
|
|
terence.yuen@ca-cib.com/iris.lai@ca-cib.com
|
22
SCHEDULE 3
Senior Security Documents
Guarantee of the Owner dated 2 April 2009
Third priority Bahamian statutory mortgage and collateral deed of covenants dated 2 April 2009
Third assignment of the Insurances dated 2 April 2009
Third assignment of the Earnings dated 2 April 2009
EUR624,000,000
Secured Loan Agreement dated 7 October 2005 as amended and/or restated from time to time
Non-Guaranteed Trustee
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
As trustee for:
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482894
|
|
Attn:
|
|
Mrs Solveig Nuland Knoff
|
|
Email:
|
|
solveig.knoff@dnbnor.no
|
(as security agent and agent)
and the following as lenders:
COMMERZBANK AKTIENGESELLSCHAFT
Global
Shipping
Domstrasse 18
20095
Hamburg
Germany
|
|
|
|
|
Fax:
|
|
+49 40 3769 9649
|
|
Attn:
|
|
Mr Stefan Kuch/Mr Marcus Weber/
|
|
|
|
Mrs Anne Randewig
|
|
Email:
|
|
shipfinance@commerzbank.com
|
23
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 482020
|
|
Attn:
|
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
KFW
IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
|
|
|
|
Fax:
|
|
+49 69 7431 3768/2944
|
|
Attn:
|
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
Friedrichswall 10
30159 Hannover
Germany
|
|
|
|
|
Fax:
|
|
+49 511 361 4785
|
|
Attn:
|
|
Mr Torsten Reinecke
|
|
Email:
|
|
shipping@nordlb.de
|
NORDEA BANK NORGE ASA
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
|
|
|
|
Fax:
|
|
+47 22 484278
|
|
Attn:
|
|
Mr Arne Berglund
|
|
Email:
|
|
arne.berglund@nordea.com
|
BANK OF SCOTLAND PLC
Marine Finance
Second Floor
New Uberior House
11 Earl Grey
Street
Edinburgh EH3 9BN
Scotland
|
|
|
|
|
Fax:
|
|
+44 131 659 1194
|
|
Attn:
|
|
Douglas Newton / Russell Parker
|
|
Email:
|
|
douglas_newton@bankofscotland.co.uk
|
24
UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG)
Alter Wall 22
20457 Hamburg
Germany
|
Fax:
|
+49 40 3692 3696/+49 89 378 334 2832
|
|
Attn:
|
Mr Peter-Alexander Wunner/
|
|
Email:
|
peter-alexander.wunner@unicreditgroup.de/
|
|
|
michael.mccarthy@unicreditgroup.de
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
Bremen and Hamburg
Domshof 17
28195 Bremen
Germany
|
Attn:
|
Dr Matthias Fischer
|
|
Email:
|
matthias.fischer@schiffsbank.com
|
FOKUS BANK
(being the Norwegian branch of Danske Bank A/S)
Stortingsgaten 6
P O Box 1170 Sentrum
NO-0107 Oslo
Norway
|
Attn:
|
Mr Øivind Haraldsen/Mr Tore Thorlacius Braein
|
|
Email:
|
oivind.haraldsen@fokus.no/
|
HSH NORDBANK AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
Email:
|
carsten.dreyer@hsh-nordbank.com
|
|
Email:
|
frauke.hay@hsh-nordbank.com
|
25
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
Sweden
|
Attn:
|
Mr Egil Aarrestad/Mr Malcolm Stonehouse
|
|
Email:
|
egil.aarrestad@seb.co.uk/
|
|
|
malcolm.stonehouse@seb.co.uk
|
26
SCHEDULE 4
Junior Security Documents
Fourth priority Bahamian statutory mortgage and collateral deed
of covenants
Fourth assignment of the Insurances
Fourth assignment of the Earnings
Credit Agreement dated November 2010, among Norwegian Jewel
Limited as borrower, NCL Corporation Ltd. as guarantor, KfW IPEX-Bank GmbH as facility agent, collateral agent and CIRR agent and the lenders party thereto from time to time for the lesser of:
|
|
(I)
|
10% of the initial construction prices of the New Vessels; and
|
|
|
(II)
|
100% of the total aggregate amounts payable by the Owner to Commerzbank Aktiengesellschaft (the “
Hermes Agent
”) in relation to the Junior Loans in
respect of the Hermes cover for such loans (the “
New Hermes Fees
”);
|
|
|
(II)
|
EUR 3,075,000 provided that such aggregate sum of EUR 126,075,000 is subject to reduction to [*] plus the New Hermes Fees if the said Hermes cover shall so provide; and
|
|
(z)
|
when aggregated with the sum to be borrowed by Pride of Hawaii, LLC under a credit agreement of the same date as, and on similar terms to, the credit agreement referred
to above, USD 224,770,000 (or such higher Dollar cap as may be later agreed between the lead arrangers of the Junior Loans and NCLC) provided that the maximum amount of the Junior Loans available to the Owner for drawing shall not exceed USD
94,576,192.83 unless the Dollar cap of USD 224,770,000 is so increased,
|
to finance in part the acquisition of the New Vessels
by two (2) wholly owned subsidiaries of NCLC and related fees.
Trustee
KFW IPEX-BANK GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
27
As trustee for:
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
(an affiliate of Commerzbank AG)
Global Shipping
Domstrasse 18
D - 20095 Hamburg
Germany
Telephone: +49 40 3769 9646/9647
Facsimile: +49 40 3769 9649
|
Attn:
|
Mr Marcus Weber/Mrs Anne Randewig
|
|
Email:
|
marcus.weber@commerzbank.com/anne.randewig@commerzbank.com
|
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
|
Attn:
|
Mrs Amra Koluder/Mrs Ursula Mack Tonjum
|
|
Email:
|
amra.koluder@dnbnor.no/ursula.mack.tonjum@dnbnor.no
|
HSBC BANK PLC
Project and Export Finance
8 Canada Square
London E14 5HQ
|
Email:
|
alan.p.marshall@hsbcib.com
|
KFW IPEX-BANK
GMBH
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
|
Fax:
|
+49 69 7431 3768/2944
|
|
Attn:
|
Mr Josef Schmid/Ms Claudia Wenzel
|
|
Email:
|
josef.schmid@kfw.de/claudia.wenzel@kfw.de
|
NORDEA BANK NORGE ASA
Middelthuns gate
17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
|
Email:
|
arne.berglund@nordea.com
|
28
EXHIBIT N
Dated [
—
] 2010
FORM OF JEWEL SECURITY TRUST DEED
between
KFW IPEX-BANK GMBH
as Collateral Agent
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate Collateral Agent
KFW IPEX-BANK GMBH
as Facility Agent
NORWEGIAN JEWEL LIMITED
as Company
NCL CORPORATION LTD.
as Parent
and
OTHERS
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
DEFINITIONS AND INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
|
6
|
|
|
3.
|
|
APPLICATION OF PROCEEDS
|
|
|
7
|
|
|
4.
|
|
SECURED CREDITORS’ UNDERTAKINGS
|
|
|
9
|
|
|
5.
|
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
|
10
|
|
|
6.
|
|
AGENT’S RIGHTS AND DUTIES
|
|
|
11
|
|
|
7.
|
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
|
19
|
|
|
8.
|
|
CHANGE OF PARTIES
|
|
|
21
|
|
|
9.
|
|
FEES AND EXPENSES
|
|
|
21
|
|
|
10.
|
|
AMENDMENTS AND RELEASES
|
|
|
22
|
|
|
11.
|
|
TERMINATION OF THE TRUSTS
|
|
|
23
|
|
|
12.
|
|
REMEDIES AND WAIVERS
|
|
|
23
|
|
|
13.
|
|
ADDITIONAL PROVISIONS
|
|
|
23
|
|
|
14.
|
|
NOTICES
|
|
|
25
|
|
|
15.
|
|
GOVERNING LAW AND JURISDICTION
|
|
|
27
|
|
|
16.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
28
|
|
|
SCHEDULE 1 ORIGINAL SECURED CREDITORS
|
|
|
29
|
|
|
SCHEDULE 2 FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
|
|
30
|
|
THIS DEED
is made on ________________________ 2010
BETWEEN:
|
(1)
|
NORWEGIAN JEWEL LIMITED
, an Isle of Man company with its registered office as of the date hereof at International House, Castle Hill, Victoria Road, Douglas,
Isle of Man IM2 4RB, British Isles (the “
Company
”);
|
|
(2)
|
NCL CORPORATION LTD.
, a Bermuda company with its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the “
Parent
”
and together with the Company, the “
Credit Parties
”);
|
|
(3)
|
The financial institutions listed in Schedule 1 as Secured Creditors (together with the Collateral Agent and the Delegate Collateral Agent, the “
Original
Secured Creditors
”);
|
|
(4)
|
KFW IPEX-BANK GMBH
as facility agent for the Lender Creditors (the “
Facility Agent
”);
|
|
(5)
|
KFW IPEX-BANK GMBH
as trustee for the Secured Creditors (the “
Collateral Agent
”, which expression includes any additional or successor
Collateral Agent appointed pursuant to and in accordance with the terms of this Deed); and
|
|
(6)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as trustee for the Secured Creditors (the “
Delegate Collateral Agent
”, which expression includes any
additional or successor Delegate Collateral Agent appointed pursuant to and in accordance with the terms of this Deed).
|
RECITALS:
|
(A)
|
The Lenders are willing to make certain credit facilities available to the Company on the terms and subject to the conditions set out in the Credit Agreement, one of
those conditions being that the Company enters into this Deed.
|
|
(B)
|
The Collateral Agent holds the Transaction Security (excluding the KfW Assignments) on trust for itself and the other Secured Creditors on the terms of this Deed.
|
|
(C)
|
The Delegate Collateral Agent holds the KfW Assignments on trust for itself and the other Secured Creditors on the terms of this Deed.
|
IT IS AGREED
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATION
|
In this Deed
the following terms have the meanings given to them in this Clause 1.1.
“
Agents
” means the Collateral Agent
and the Delegate Collateral Agent.
“
Credit Agreement
” means the €126,075,000 credit agreement made
between the Parent, the Company, the Lenders and others effective 18 November 2010.
“
Credit Document
Obligations
” has the meaning given in the Credit Agreement.
“
Delegate
” means any delegate, agent or
attorney appointed by the Collateral Agent, pursuant to and in accordance with the terms of this Deed.
“
Discharge
Date
” means the date on which all the Secured Obligations have been fully discharged and none of the Lender Creditors is under any obligation (whether actual or contingent, other than (i) contingent obligations for which no claim has
been made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreement) to make advances or provide other financial accommodation to any of the Credit Parties
under the Credit Documents.
“ECF Vessel 1 Assignment of Contracts
” means the “Assignment of
Contracts” under and as defined in the Breakaway One Facility.
“ECF Vessel 1 Assignment of KfW Refund
Guarantees”
means the “Assignment of KfW Refund Guarantees” under and as defined in the Breakaway One Facility.
“ECF Vessel 2 Assignment of Contracts
” means the “Assignment of Contracts” under and as defined in the Breakaway Two Facility.
“ECF Vessel 2 Assignment of KfW Refund Guarantees
” means the “Assignment of KfW Refund Guarantees” under and as
defined in the Breakaway Two Facility.
“
Jewel Shared Security
” means the assets which are expressed to be the
subject of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Jewel Shared Security Documents.
“Jewel Shared Security Documents
” means
|
|
(a)
|
the Assignment of Earnings; and
|
|
|
(b)
|
the Assignment of Insurances.
|
“
KfW Assignments
” means (a) the Term Loan Vessel 1 Assignment of KfW Refund Guarantees and (b) the Term Loan
Vessel 2 Assignment of KfW Refund Guarantees.
“
Other Obligations
” has the meaning given in the Credit
Agreement.
“
Party
” means a party to this Deed.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this Deed or any statute, by
a court or otherwise) of all or any of the Trust Property and the Trust Property Delegated and shall, where permitted by law, include an administrative receiver.
2
“
Secured Creditors
” means (a) the Original Secured Creditors,
(b) any Receiver or Delegate, (c) any additional or successor Agents appointed pursuant to and in accordance with the terms of this Deed, (d) any Term Loan Hedging Creditor that has acceded to this Deed by delivery of a Secured
Creditor Accession Undertaking to the Collateral Agent and (e) any successor Facility Agent or permitted assignee, permitted transferee of a Lender or permitted transferee of a Term Loan Hedging Creditor that has acceded to this Deed by
(i) delivery of a Secured Creditor Accession Undertaking to the Collateral Agent or (ii) delivery of a Transfer Certificate or Assignment Agreement to the Facility Agent.
“
Secured Creditor Accession Undertaking
” means an undertaking substantially in the form set out in Schedule 2 (
Form of
Secured Creditor Accession Undertaking
) of this Deed.
“
Secured Obligations
” means the Credit Document
Obligations and the Other Obligations.
“
Security
” means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“
Term
Loan Hedging Agreements
” means any Term Loan Interest Rate Protection Agreement and any Term Loan Other Hedging Agreement to the extent secured by the Term Loan Collateral.
“
Term Loan Hedging Creditors
” means each Lender or affiliate thereof that may at any time and from time to time enter
into one or more Term Loan Hedging Agreements and which becomes a Party to this Deed pursuant to Clause 8.3 (
New Hedging Creditor
), even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason,
together with such Lender’s or affiliate’s successors and assigns, if any.
“
Term Loan Interest Rate
Protection Agreement
” means Interest Rate Protection Agreement as defined in the Credit Agreement.
“
Term Loan
Collateral
” means the Collateral as defined in the Credit Agreement.
“
Term Loan Other Hedging
Agreement
” means Other Hedging Agreement as defined in the Credit Agreement.
“
Term Loan Vessel 1 Assignment
of Contracts
” means the “Vessel 1 Assignment of Contracts” as defined in the Credit Agreement.
“
Term Loan Vessel 1 Assignment of KfW Refund Guarantees
” means the “Vessel 1 Assignment of KfW Refund
Guarantee” as defined in the Credit Agreement.
“
Term Loan Vessel 2 Assignment of Contracts
” means the
“Vessel 2 Assignment of Contracts” as defined in the Credit Agreement.
“
Term Loan Vessel 2 Assignment of KfW
Refund Guarantees
” means the “Vessel 2 Assignment of KfW Refund Guarantee” as defined in the Credit Agreement.
3
“
Transaction Security
” means the security created or expressed to be
created in favour of the relevant Agent pursuant to the Term Loan Vessel 1 Assignment of Contracts, the Term Loan Vessel 2 Assignment of Contracts, the Jewel Shared Security Documents, the KfW Assignments and any other agreement which is governed by
the laws of England and Wales and which creates or purports to create Security in favour of the Secured Creditors.
“
Trust Property
” means all rights, interests, benefits and other property comprised in the Transaction Security
(excluding the KfW Assignments) and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Collateral Agent under, pursuant to or in connection with this Deed or any Credit Document to which the Collateral Agent is a party;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Collateral Agent (other than any made or granted solely for its own
benefit) made or granted in or pursuant to any of the Credit Documents to which the Collateral Agent is a party;
|
|
|
(c)
|
any sum which is received or recovered by the Collateral Agent under, pursuant to or in connection with any of the Credit Documents or the exercise of any of the
Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Collateral Agent upon trust on the terms of this Deed or any of the Credit Documents to
which the Collateral Agent is a party; and
|
|
|
(d)
|
all income and other sums at any time received or receivable by the Collateral Agent in respect of the other Trust Property or any part thereof.
|
“
Trust Property Delegated
” means all rights, interests, benefits and other property comprised
in the KfW Assignments and the proceeds thereof including without limitation:
|
|
(a)
|
any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to or otherwise vested in the
Delegate Collateral Agent under, pursuant to or in connection with this Deed or the KfW Assignments;
|
|
|
(b)
|
any representation, obligation, covenant, warranty or other contractual provision in favour of the Delegate Collateral Agent (other than any made or granted solely for
its own benefit) made or granted in or pursuant to any of the KfW Assignments;
|
|
|
(c)
|
any sum which is received or recovered by the Delegate Collateral Agent under, pursuant to or in connection with any of the KfW Assignments or the exercise of any of
the Delegate Collateral Agent’s powers under or in connection therewith (other than any sum received or recovered solely for its own account) and which is held by the Delegate Collateral Agent upon trust on the terms of this Deed or any the KfW
Assignments; and
|
4
|
|
(d)
|
all income and other sums at any time received or receivable by the Delegate Collateral Agent in respect of the other Trust Property Delegated or any part thereof.
|
“
Trustee Acts
” means the Trustee Act 1925 and the Trustee Act 2000.
“
Vessel 1 Shared Security
” means the assets which are expressed to be the subject of the Security created or evidenced or
expressed to be created or evidenced under or pursuant to the Vessel 1 Shared Security Documents.
“
Vessel 1 Shared
Security Documents
” means:
(a) the Term Loan Vessel 1 Assignment of Contracts;
(b) the Term Loan Vessel 1 Assignment of KfW Refund Guarantees;
(c) the ECF Vessel 1 Assignment of Contracts; and
(d) the ECF Vessel 1 Assignment
of KfW Refund Guarantees.
“
Vessel 2 Shared Security
” means the assets which are expressed to be the subject
of the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Vessel 2 Shared Security Documents.
“
Vessel 2 Shared Security Documents
” means:
(a) the Term Loan
Vessel 2 Assignment of Contracts;
(b) the Term Loan Vessel 2 Assignment of KfW Refund Guarantees;
(c) the ECF Vessel 2 Assignment of Contracts; and
(d) the ECF Vessel 2 Assignment of KfW Refund Guarantees.
Unless
this Deed provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreement shall have the same meaning (or be subject to the same construction) in this Deed.
|
1.3
|
References to Agreements
|
Unless otherwise stated, any reference in this Deed to any agreement or document (including any reference to this Deed or any other Credit
Document or to any agreement or document entered into pursuant to or in accordance with such agreement or document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, restated, varied, novated or supplemented from time to time; and
|
|
|
(b)
|
any agreement or document whereby such agreement or document is so amended, restated, varied, novated or supplemented or which is entered into pursuant to or in
accordance with such agreement or document.
|
5
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
Any reference
in this Deed to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
|
|
(a)
|
A person which is not a party to this Deed (a “
third party
”) shall have no rights to enforce the provisions of this Deed save for those rights it would
have had if the Contracts (Rights of Third Parties) Act 1999 had not come into effect provided that each of Clause 5.1 (
Credit Parties’ Indemnity to Agents
), Clause 9.1 (
Transaction and Enforcement Expenses
) and Clause 13.3
(
Currency Indemnity
) shall be enforceable by any third party referred to in such clause as if such third party were a party to this Deed.
|
|
|
(b)
|
The Parties to this Deed may vary or rescind this Deed without the consent of any third party.
|
|
1.7
|
Clause and Schedule Headings
|
|
|
(a)
|
Unless otherwise stated, any reference in this Deed to a Clause or a Schedule shall be construed as a reference to a clause of or a schedule to this Deed.
|
|
|
(b)
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Deed.
|
|
2.
|
TRUSTEE FOR THE SECURED CREDITORS
|
|
2.1
|
Declaration of Trust by Collateral Agent
|
To the extent the Trust Property is not transferred, charged or granted to the Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of Clause 2.3 (
Non-Trust
Jurisdictions
), the Collateral Agent declares itself trustee of the Trust Property to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the terms and subject to the conditions set out in this
Deed.
|
2.2
|
Declaration of Trust by Delegate Collateral Agent
|
To the extent the Trust Property Delegated is not transferred, charged or granted to the Delegate Collateral Agent on trust pursuant to the Credit Documents, and subject to the provisions of
Clause 2.3 (
Non-Trust Jurisdictions
), the Delegate Collateral Agent declares itself trustee of the Trust Property Delegated to hold the same on trust for the Secured Creditors for the purpose of securing the Secured Obligations on the
terms and subject to the conditions set out in this Deed.
6
|
2.3
|
Non-Trust Jurisdictions
|
It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed
to be created by this Deed, the relationship of the Secured Creditors to the Agents shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Deed shall have
full force and effect between the Parties.
Each
Credit Party hereby covenants with the Agents as trustees for the Secured Creditors that on demand by either of the Agents such Credit Party shall discharge all obligations which are then due and payable and which such Credit Party may at any time
owe to the Agents (whether for its own account or as trustee for the Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they
act) under or pursuant to the Credit Documents including any liability in respect of any further advances made under the Credit Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as
principal or as surety or in some other capacity) and each Credit Party shall pay to the Agents when due and payable every sum at any time owing, due or incurred by such Credit Party to the Agents (whether for its own account or as trustee for the
Secured Creditors) or any of the other Secured Creditors (whether for their own account or as trustee or agent of the persons who such Secured Creditors represent or for whom they act) in respect of any such liabilities.
|
3.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
All moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral Agent pursuant
to the Term Loan Vessel 1 Assignment of KfW Refund Guarantees) shall be applied by the Collateral Agent (a) with respect to the Vessel 1 Shared Security only (to the extent that the Tranche A Intercreditor Agreement is operative), in accordance
with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Tranche A Intercreditor Agreement and (b) with respect to the Vessel 1 Shared Security (to the extent that the Tranche A Intercreditor Agreement is
inoperative) and any other Security (other than Vessel 2 Shared Security and Jewel Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05 (
Application of Proceeds
) of the Credit
Agreement.
|
|
|
(b)
|
All moneys from time to time received or recovered by the Agents (after payment of any sums received by the Delegate Collateral Agent to the Collateral
Agent pursuant to the Term Loan Vessel 2 Assignment of KfW Refund Guarantees) shall be applied by the Collateral Agent (a) with respect to the Vessel 2 Shared Security only (to the extent that the Tranche B Intercreditor Agreement is
operative), in accordance with the order of priority set out in clause 7.1 (
Application of Proceeds
) of the Tranche B Intercreditor
|
7
|
|
Agreement and (b) with respect to the Vessel 2 Shared Security (to the extent that the Tranche B Intercreditor Agreement is inoperative) and any other Security (other than Vessel 1 Shared
Security and Jewel Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05 (
Application of Proceeds
) of the Credit Agreement.
|
|
|
(c)
|
All moneys from time to time received or recovered by the Agents shall be applied by the Collateral Agent (a) with respect to the Jewel Shared Security only (to
the extent that the Jewel Intercreditor Agreement is operative), in accordance with the order of priority set out in clauses 3.4, 7.5 and 8 of the Jewel Intercreditor Agreement and (b) with respect to the Jewel Shared Security (to the extent
that the Jewel Intercreditor Agreement is inoperative) and any other Security (other than Vessel 1 Shared Security and Vessel 2 Shared Security) to which this Deed relates, in accordance with the order of priority set out in Section 4.05
(
Application of Proceeds
) of the Credit Agreement.
|
|
3.2
|
Investment of Proceeds
|
|
|
(a)
|
Pending its distribution under Clause 3.1 (
Order of Application
) and without responsibility for any loss or any reduction in return which may result from its so
doing, the Collateral Agent may credit any sum received, recovered or held by it in respect of the Trust Property and/or the Trust Property Delegated to such suspense or other account as the Collateral Agent thinks fit or invest or place on deposit
such sum in the name of or under the control of the Collateral Agent in any investment for the time being authorised by English law for the investment by trustees of trust moneys or with such bank or financial institution (including the Collateral
Agent) as the Collateral Agent may think fit.
|
|
|
(b)
|
The Collateral Agent may at any time in its absolute discretion vary, exchange, transfer or transpose any such investments or deposits for or into other such
investments or deposits without being under any obligation or duty to diversify the same. Any investment made by the Collateral Agent may, at its discretion, be made or retained in the name of a nominee.
|
In
order to apply any sum held or received by the Collateral Agent or a Receiver in or towards payment of the Secured Obligations, the Collateral Agent or such Receiver may purchase an amount in another currency and the rate of exchange to be used
shall be that at which, at such time as it considers appropriate, the Collateral Agent or such Receiver is able to effect such purchase.
The
Collateral Agent shall be entitled to set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any
distribution or payment made by it under this Deed, and to pay all taxes which may be assessed against it in respect of any of the Trust Property or Trust Property Delegated, as applicable, or as a consequence of performing its duties, or by virtue
of its acting in its capacity as Collateral Agent under any of the Credit Documents or otherwise (other than in connection with its remuneration for performing its duties under this Deed).
8
|
3.5
|
Discharge of Secured Obligations
|
|
|
(a)
|
Any payment to be made in respect of the Secured Obligations by the Collateral Agent pursuant to (i) paragraph (c) of Clause 7.1 (
Application of
Proceeds
) of either ECF Intercreditor Agreement or (ii) paragraph (ii) of Section 4.05 (
Application of Proceeds
) of the Credit Agreement shall be made to the Facility Agent (on behalf of the Lenders and the other Secured
Creditors (to the extent applicable)) and any payment so made shall to the extent of such payment be a good discharge to the Agents.
|
|
|
(b)
|
The Credit Parties hereby agree that any sums due in respect of the Secured Obligations to any Secured Creditor shall only be discharged to the extent that such Secured
Creditor has received such sums in the currency in which such sums are due under the Credit Documents.
|
|
|
(a)
|
If any Secured Creditor has received an amount as a result of the enforcement of the Transaction Security and the Collateral Agent and/or the Delegate Collateral Agent
is subsequently required to pay an amount equal to that amount (a “
Clawback Amount
”) to a liquidator (or any other party) whether pursuant to a court order or otherwise such Secured Creditor will promptly on the request of the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) pay an amount equal to such Clawback Amount to the Collateral Agent and/or the Delegate Collateral Agent (as applicable) for payment to the liquidator (or such other party).
|
|
|
(b)
|
Each Secured Creditor that has received a Clawback Amount shall indemnify the relevant Agent against any and all costs, claims, losses, expenses (including legal fees)
and liabilities together with any VAT thereon which the Collateral Agent and/or the Delegate Collateral Agent (as applicable) may incur with respect to that Clawback Amount otherwise than by reason of the Agent’s own gross negligence or wilful
misconduct.
|
|
4.
|
SECURED CREDITORS’ UNDERTAKINGS
|
Each Secured Creditor gives the undertakings set out in this Clause 4 to each of the other Secured Creditors and acknowledges that the Agents entered into this Deed in reliance on those undertakings.
|
4.1
|
Secured Creditors’ Information
|
The Secured Creditors shall furnish to the Facility Agent, for transmission to the Collateral Agent and/or the Delegate Collateral Agent, such information as the Collateral Agent and/or the Delegate
Collateral Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Collateral Agent and/or the Delegate Collateral Agent to perform its functions as trustee.
9
Each
of the Collateral Agent and the Delegate Collateral Agent alone, in their respective capacities, to the exclusion of the Secured Creditors, shall have power to enforce or have recourse to the Transaction Security and to exercise its rights and
powers pursuant to the Credit Documents.
Without prejudice to any of the provisions of any other Credit Document and to the extent that the Company does not do so on demand or is
not obliged to do so, each Secured Creditor that is a Lender hereby severally agrees to indemnify, rateably in accordance with such Lender’s Commitment, the Collateral Agent and/or the Delegate Collateral Agent (as applicable) (and every
Receiver and Delegate) on demand from and against any action, charge, claim, cost, damage, demand, expense (including legal fees), liability or loss which may be brought, made or preferred against or suffered, sustained or incurred by the Collateral
Agent and/or the Delegate Collateral Agent (as applicable) in complying with any instructions from any of the Secured Creditors or, in the case of the Delegate Collateral Agent, the Collateral Agent or otherwise sustained or incurred by the
Collateral Agent and/or the Delegate Collateral Agent (as applicable) or any Receiver or Delegate in connection with this Deed or any Credit Document except to the extent that the liability or loss arises directly from the Collateral Agent and/or
the Delegate Collateral Agent (as applicable)’s (or, as the case may be, the Receiver’s or the Delegate’s) gross negligence or wilful misconduct.
|
4.4
|
Assignments and Transfers
|
Each Secured Creditor agrees with the Agents that it shall not assign or transfer any of its rights, benefits and/or obligations under the
Credit Agreement unless the person to whom such assignment or transfer is made shall have acceded to this Deed by the delivery to the Agents of a duly completed Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement so
as to ensure that such person shall be bound by the terms and conditions of this Deed as a Secured Creditor.
|
5.
|
CREDIT PARTIES’ UNDERTAKINGS
|
|
5.1
|
Credit Parties’ Indemnity to Agents
|
The Credit Parties shall jointly and severally indemnify and hold harmless the Collateral Agent and the Delegate Collateral Agent and every Receiver and Delegate (“
indemnified parties
”)
on demand from and against any and all costs, claims, losses, expenses (including legal fees) and liabilities (together with any applicable VAT), incurred by any of them in relation to or arising out of:
|
|
(a)
|
the preservation, exercise or enforcement of the Transaction Security;
|
|
|
(b)
|
the exercise of any of the rights, powers, discretions and remedies vested in any of the indemnified parties by the Credit Documents or by law;
|
10
|
|
(c)
|
any default by any Credit Party in the performance of any of the obligations expressed to be assumed by it in the Credit Documents; or
|
|
|
(d)
|
otherwise in relation to any of the Transaction Security or the performance of the terms of this Deed.
|
The Collateral Agent and the Delegate Collateral Agent may, in priority to any payment to the Secured Creditors and on its own behalf or
on behalf of the other indemnified parties, indemnify itself or such other indemnified parties out of the Trust Property and Trust Property Delegated respectively and shall have a lien on the Trust Property and Trust Property Delegated respectively
for all moneys payable under this Clause 5.1.
To the
extent that a Secured Creditor is required to indemnify the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
) as a result of any action which a Credit Party is required to take but does not,
the relevant Credit Party agrees to indemnify each such Secured Creditor on demand against any amount it has paid to the Collateral Agent and/or the Delegate Collateral Agent pursuant to Clause 4.3 (
Indemnity to Agents
).
|
5.3
|
Credit Parties’ Waiver
|
Each of the Credit Parties hereby unconditionally waives, to the extent permitted under applicable law any and all rights it may have to require that the Transaction Security be enforced in any particular
order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security, which is capable of being applied in or towards discharge of any of the Secured
Obligations is so applied.
|
5.4
|
Sums Received by Credit Parties
|
If any of the Credit Parties receives any sum which, pursuant to any of the Credit Documents, should have been paid to the Collateral Agent and/or the Delegate Collateral Agent, that sum shall be held by
that Credit Party for and to the order of the Secured Creditors and shall as soon as practicable be paid to the Collateral Agent for application in accordance with Clause 3.1 (
Order of Application
)).
|
6.
|
AGENT’S RIGHTS AND DUTIES
|
|
6.1
|
Powers and Remuneration
|
|
|
(a)
|
The Agents shall have such rights, powers, authorities and discretions as are (i) conferred on trustees by the Trustee Acts and (ii) by way of supplement to
the Trustee Acts as provided for in this Deed and the Credit Documents.
|
|
|
(b)
|
Between itself and the other Parties, the Collateral Agent shall have full power to determine all questions and doubts arising in relation to any of the provisions of
this Deed or any Credit Document and any such determination shall in the absence of manifest error, be conclusive and shall bind the Agents and the other Parties.
|
11
|
|
(c)
|
The Agents shall be entitled to such remuneration as it may from time to time agree with the Company with the approval of the Facility Agent.
|
|
6.2
|
Instructions for Agents to Act
|
The Agents shall:
|
|
(a)
|
be entitled, in their absolute discretion, to refrain from taking any (or any further) action or exercising any of the Agents’ rights under or in respect of this
Deed or any Credit Document until it has received instructions from the Facility Agent, as to whether (and/or the way in which) such action, right, power, authority or discretion is to be taken or exercised;
|
|
|
(b)
|
except as otherwise provided in this Deed, act in accordance with any instructions given to it by the Facility Agent and shall be entitled to assume that (i) any
instructions received by it from the Facility Agent are duly given by the Facility Agent itself or on behalf of the requisite Lenders and/or other Secured Creditors (if applicable), (ii) all applicable conditions under the Credit Documents for
taking any action it is directed to take have been satisfied and (iii) unless it has received actual notice of their revocation, that any instructions or directions given by the Facility Agent have not been revoked;
|
|
|
(c)
|
be entitled to request instructions or clarification from the Facility Agent as to whether, and in what manner, it should exercise or refrain from exercising its
rights, powers and discretions under this Deed and the Agents may refrain from acting unless and until it has received such instructions or clarification;
|
|
|
(d)
|
be entitled to refrain from acting in accordance with the instructions of the Facility Agent or any other person (including bringing any legal action or proceeding
arising out of or in connection with the Credit Documents) until it has received such indemnification and/or security as it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, expenses, losses
and liabilities which it may incur in taking such action or bringing such legal action or proceedings; and
|
|
|
(e)
|
be entitled to carry out all dealings with the Lenders and/or other Secured Creditors (if applicable) through the Facility Agent and may give to the Facility Agent any
notice or other communication required to be given by the Agents to the Lenders and/or other Secured Creditors (if applicable).
|
|
6.3
|
Action to Protect or Enforce Transaction Security
|
Subject to the provisions of this Clause 6:
|
|
(a)
|
the Agents may, in the absence of any instructions from the Facility Agent to the contrary, take such action in the exercise of any of its duties under the Credit
Documents and this Deed which in its absolute discretion it considers appropriate; and
|
|
|
(b)
|
at any time after receipt by the Agents of notice from the Facility Agent informing the Agents that the Transaction Security has become enforceable and directing the
Agents to exercise all or any of its rights, remedies, powers or discretions under any of the Credit Documents or this Deed, the Agents shall take such action as in its absolute discretion it thinks fit to enforce the Transaction Security.
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12
|
6.4
|
Agents’ Rights and Discretions
|
The Agents may:
|
|
(i)
|
any communication, certificate, legal opinion or other document believed by it to be genuine and correct and to have been signed by, or with the authority of, the
proper person;
|
|
|
(ii)
|
any statement made by a director, officer, partner or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within
his power to verify; and
|
|
|
(iii)
|
a certificate signed by any one or more persons which, or each of which, is believed by it to be a director or other duly authorised officer of the relevant Party to
the effect that any particular dealing, transaction, step or thing is, in the opinion of the person so certifying, suitable or expedient or as to any other fact or matter upon which the Agents may require to be satisfied and shall not be responsible
for any loss that may be occasioned by its relying on any such certificate;
|
|
|
(b)
|
obtain and pay for such legal or other expert advice or services as it may consider necessary or desirable;
|
|
|
(c)
|
retain for its own benefit, without liability to account to any other person, any fee or other sum received by it for its own account;
|
|
|
(d)
|
in the case of the Collateral Agent only, exercise any of its rights, powers and discretions and perform any of its obligations under this Deed or any of the Credit
Documents through its employees or through paid or unpaid agents, which may be corporations, partnerships or individuals (whether or not lawyers or other professional persons). Any such agent shall be responsible for its own acts and omissions and
subject to Section 12.02 of the Credit Agreement, the Collateral Agent shall not be responsible for any misconduct or omission on the part of, or be bound to supervise the proceedings or acts of, any such employee or agent (and any such agent
which is engaged in any profession or business shall be entitled to charge and be paid all usual fees, expenses and other charges for its services);
|
|
|
(e)
|
in the case of the Collateral Agent only, at any time and from time to time delegate, whether by power of attorney or otherwise and upon such terms and
conditions (including the power to sub-delegate with the consent of the Collateral Agent) as the Collateral Agent may think fit, to any persons all or any of its rights, powers and discretions under this Deed or under any of the Credit Documents.
Such delegate or sub-delegate shall be responsible for its own acts and omissions and subject to Section 12.02 of the Credit Agreement,
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13
|
|
the Collateral Agent shall not be in any way liable or responsible to any person for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate or
sub-delegate. Notwithstanding the above and for the avoidance of doubt, the Collateral Agent shall not be responsible for any acts or omissions, including, without limitation, any acts or omissions caused by the gross negligence or wilful misconduct
of the Delegate Collateral Agent;
|
|
|
(f)
|
together with every Receiver, Delegate or other person appointed under this Deed or any of the Credit Documents, indemnify themselves out of the Trust Property and the
Trust Property Delegated against all proceedings, claims and demands which may be made or taken against it and all costs, charges, damages, expenses and liabilities which it may suffer or incur unless suffered or incurred by reason of its own gross
negligence or wilful misconduct; and
|
|
|
(g)
|
unless it has, in its capacity as trustee for the Secured Creditors, received actual notice to the contrary, assume that (i) no Event of Default has occurred and
no Credit Party is in breach of or default under its obligations under any of the Credit Documents and (ii) any right, power, authority or discretion vested by any Credit Document in any person has not been exercised.
|
The Agents shall promptly inform the Facility Agent (and in the case of the Delegate Collateral Agent, inform the Collateral Agent) of:
|
|
(a)
|
the contents of any written notice or document received by it in its capacity as Collateral Agent and Delegate Collateral Agent from any Credit Party under any Credit
Document; and
|
|
|
(b)
|
the occurrence of any Event of Default or any default by a Credit Party in the due performance of or compliance with its obligations under any Credit Document of which
the Collateral Agent or Delegate Collateral Agent has received written notice from any other Party.
|
Notwithstanding anything to the contrary expressed or implied in any Credit Document, the Agents shall not:
|
|
(a)
|
be liable to anyone where it has acted reasonably and in good faith on the opinion or advice of or any information obtained from any lawyer, accountant, architect,
engineer, surveyor, broker, consultant, valuer or other expert (including any auditor), whether obtained by the Agents or otherwise whether or not the expert’s liability in respect thereof is limited by a monetary cap or otherwise and whether
or not any such opinion, advice or information contains some error or is not authentic;
|
|
|
(b)
|
be obliged to monitor or enquire as to whether or not an Event of Default has occurred and will not be deemed to have knowledge of the occurrence of an Event Default
unless it has actual knowledge or express notice thereof;
|
14
|
|
(c)
|
have any duty to (i) ensure that any payment or other financial benefit in respect of any of the Trust Property or the Trust Property Delegated is duly and
punctually paid, received or collected as and when the same becomes due and payable or (ii) to procure that the correct amounts (if any) are paid or received or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys
or other property paid, distributed, accrued or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise on, or in respect of or in substitution for any of the Trust Property or the Trust
Property Delegated;
|
|
|
(d)
|
unless required by law or ordered so to do by a court of competent jurisdiction, be required to (i) disclose to any Secured Creditor any credit or other
information (other than information in the Agents’ possession specifically concerning the Credit Documents) with respect to the financial condition or affairs of any member of the Group or any of their related entities whether coming into its
or any of its affiliates possession before or on the entry into this Deed or at any time thereafter or (ii) request any certificates or other documents from any member of the Group unless specifically requested to do so by the Facility Agent in
accordance with this Deed or any of the Credit Documents;
|
|
|
(e)
|
be bound to account to any other Secured Creditor for any sum or the profit element of any sum received by it for its own account;
|
|
|
(f)
|
be bound to disclose to any other person (including any Secured Creditor) (i) any confidential information or (ii) any other information if disclosure would
or might in its reasonable opinion constitute a breach of any law or be a breach of fiduciary duty;
|
|
|
(g)
|
be liable to any of the Secured Creditors for any action taken or omitted to be taken under or in connection with any of the Credit Documents unless caused by its
fraud, gross negligence or wilful misconduct;
|
|
|
(h)
|
be under any obligations other than those which are specifically provided for in the Credit Documents to which it is a party;
|
|
|
(i)
|
have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Credit Party; or
|
|
|
(j)
|
be obliged to take any action in relation to enforcing or perfecting any charge over any shares in a company registered or incorporated with unlimited liability.
|
|
6.7
|
Responsibility of Secured Creditors
|
It is understood and agreed by each Secured Creditor that at all times that Secured Creditor has itself been, and will continue to be, solely responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the Credit Documents including but not limited to:
|
|
(a)
|
the financial condition, creditworthiness, condition, affairs, status and nature of each of the Credit Parties;
|
15
|
|
(b)
|
the legality, validity, effectiveness, adequacy and enforceability of each of the Credit Documents and the Transaction Security and any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(c)
|
whether that Secured Creditor has recourse, and the nature and extent of that recourse, against any Credit Party or any other person or any of their respective assets
under or in connection with the Credit Documents or the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents;
|
|
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by any person in connection with the Credit Documents or the transactions contemplated therein or
any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Credit Documents; and
|
|
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Trust Property or the Trust Property Delegated, the priority of any of the
Transaction Security or the existence of any other Security affecting the Trust Property or the Trust Property Delegated,
|
and each Secured Creditor warrants to the Agents that it has not relied on and will not at any time rely on the Agents in respect of any of these matters.
|
6.8
|
No Responsibility to Perfect Security
|
The Agents shall not be liable for any omission or defect in, or any failure to preserve or perfect any or all of the Transaction Security including, without limitation, any failure to:
|
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Credit Party to any of the Trust Property or the Trust
Property Delegated;
|
|
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Credit
Documents or the Transaction Security;
|
|
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of any of the Credit Documents or of the Transaction Security;
|
|
|
(d)
|
take, or to require any of the Credit Parties to take, any steps to perfect its title to any of the Trust Property or the Trust Property Delegated or to render the
Transaction effective or to secure the creation of any ancillary security under the laws of any jurisdiction; or
|
16
|
|
(e)
|
require any further assurances in relation to any of the Transaction Security.
|
The Agents
shall not be under any obligation to insure any of the Trust Property or the Trust Property Delegated, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Credit
Documents. The Agents shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. Where the Agents are named on any insurance policy as an insured party, it shall not be
responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless any Secured
Creditor shall have requested it to do so in writing and the Agents shall have failed to do so within 14 days after receipt of that request.
|
|
(a)
|
Each of the Agents shall be at liberty to place (at the cost of the Credit Parties) any of the Credit Documents and any title deeds or other documents relating to the
Transaction Security in any safe custody selected by the Agents or with any financial institution, any company whose business includes the safe custody of documents or any firm of lawyers of good repute and the Agents shall not be responsible for,
or required to insure against, any loss incurred in connection with that deposit.
|
|
|
(b)
|
Each of the Agents may in its absolute discretion make any such arrangements as it thinks fit for allowing any Credit Party or its lawyers or auditors or other advisers
access to or possession of any title deeds and other documents relating to the Transaction Security.
|
|
|
(c)
|
The Agents shall not be responsible for any loss which may result arising out of any deposit, access, possession or other matter provided for in this Clause 6.10.
|
Each
of the Agents shall be entitled to accept without enquiry, and shall not be obliged to investigate, such evidence of right and title as any Credit Party may have to any of the Trust Property or the Trust Property Delegated and shall not be liable
for or bound to require any Credit Party to remedy any defect in its right or title.
|
6.12
|
Refrain from Illegality
|
Each of the Agents may refrain from doing anything which in its opinion would or might be contrary to any law of any jurisdiction or any
directive or regulation binding on it which would or might otherwise render it liable to any person, and the Agents may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
17
|
6.13
|
Business with the Credit Parties
|
Each of the Agents may accept deposits from, lend money to or provide advisory or other services to and generally engage in any kind of banking or other business with any of the Credit Parties whether or
not it may or does lead to a conflict with the interests of any of the Secured Creditors and may do so without any obligation to account to or disclose any such arrangements to any person.
|
6.14
|
Agent Division Separate
|
In acting as trustee for the Secured Creditors, each of the Agents shall be regarded as acting through its trustee division which shall be
treated as a separate entity from any of its other divisions or departments and any information received by any other division or department of the relevant Agent may be treated as confidential and shall not be regarded as having been given to the
relevant Agent’s trustee division.
|
6.15
|
Exclusion of Liability
|
Neither the Agents nor any of their officers, employees or agents makes, or shall at any time be deemed to have made any representation or
warranty (express or implied) with regard to, nor shall it be responsible or liable to any person for:
|
|
(a)
|
the adequacy, accuracy or completeness of any representation, warranty, statement or information contained in this Deed or any Credit Document, notice, report or other
document, statement or information circulated, delivered or made to any Secured Creditor whether orally or otherwise and whether before, on or after the date of this Deed;
|
|
|
(b)
|
the execution, delivery, validity, legality, priority, ranking, adequacy, effectiveness, performance, enforceability or admissibility in evidence of this Deed or any
Credit Document or any other document referred to in paragraph (a) above or of any Transaction Security created thereby or any obligations imposed thereby or assumed thereunder or any other document, agreement or arrangement entered into, made
or executed in anticipation of, pursuant to or in connection therewith;
|
|
|
(c)
|
anything done or not done by it or any of them under or in connection with this Deed or the Credit Documents;
|
|
|
(d)
|
any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Credit Documents or the
Transaction Security or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise;
|
|
|
(e)
|
the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Credit Documents, the Transaction
Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection therewith; or
|
18
|
|
(f)
|
any shortfall which arises on the enforcement of the Transaction Security, and each of the Secured Creditors agrees that it will not take any proceedings or assert or
seek to assert against any officer, employee or agent of the Agents any claim it might have against any of them in respect of the matters referred to in this Clause 6.15.
|
|
7.
|
APPOINTMENT AND REMOVAL OF AGENTS
|
|
7.1
|
Appointment of Additional Agents
|
|
|
(a)
|
The Collateral Agent shall, at any time and for any purpose or reason whatsoever, have the power to appoint any person to act either as a new or additional trustee, or
as co-trustee jointly with the Collateral Agent, with (subject to the provisions of this Deed) such of the Collateral Agent’s rights (including the right to reasonable remuneration and indemnity but not exceeding those conferred on the
Collateral Agent by this Deed), duties and obligations as are vested in the Collateral Agent by this Deed or any Credit Document as shall be conferred or imposed on such person by the instrument of such co-trustee’s appointment.
|
|
|
(b)
|
Any such appointment by the Collateral Agent shall be reasonably acceptable to the Company; provided that the Company’s consent shall not be required pursuant to
this clause (b) if an Event of Default exists at the time of the appointment of the new or additional or co-trustee acting jointly with the Agents.
|
|
|
(c)
|
The Collateral Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral
Agent shall have exercised reasonable care in the selection of such person.
|
|
|
(d)
|
So long as it continues to be a trustee under this Deed, the Collateral Agent shall have power to remove any such new or additional trustee or co-Collateral Agents with
or without cause.
|
|
|
(e)
|
The remuneration the Collateral Agent may pay to any such person, and any costs and expenses incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Deed, be treated as costs and expenses incurred by the Collateral Agent.
|
The
Collateral Agent may at any time delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Credit Documents and such delegation may be made upon such terms
and conditions (including the power to sub-delegate) and subject to such restrictions as the Collateral Agent may think fit. Such delegate or sub-delegate shall be responsible for its own acts and omissions and the Agents shall not be bound to
supervise, or be responsible for any loss incurred by reason of any act or omission of any such person if the Collateral Agent shall have exercised reasonable care in the selection of such person.
19
|
7.3
|
Retirement or Removal of Agents
|
|
|
(a)
|
The Collateral Agent may retire at any time (without assigning any reason therefor and without being responsible for any costs occasioned by such retirement) by giving
not less than 15 Business Days’ prior written notice to that effect to the Facility Agent (on behalf of the Lenders) and the Company.
|
|
|
(b)
|
The Delegate Collateral Agent may not resign except with the prior consent of the Collateral Agent. Only after such consent is received and subject to the other
provisions of this Clause 7.3 and without being responsible for any costs occasioned by such resignation, the Delegate Collateral Agent may resign by giving not less than 15 Business Days’ prior written notice to that effect to the Facility
Agent (on behalf of the Lenders) and the Company.
|
|
|
(c)
|
The Facility Agent (acting on the instructions of the Required Lenders), after consultation with the Parent, may remove an Agent from its role as trustee under this
Deed by giving notice to that effect to the relevant Agent and each of the other Parties to this Deed.
|
|
|
(d)
|
The retirement or removal of a sole Collateral Agent or Delegate Collateral Agent shall not take effect until (i) the appointment of a successor Collateral Agent
or Delegate Collateral Agent, as the case may be, as a co-trustee has been made and (ii) the Facility Agent is satisfied that all things required to be done in order that the relevant Credit Documents continue to provide perfected and
enforceable security in favour of the successor Collateral Agent or Delegate Collateral Agent (as applicable) have been done.
|
|
|
(e)
|
If a notice of retirement or removal has been given under paragraph (a) or (b) above, the power to appoint new Agents shall vest in the Required Lenders. The
Required Lenders shall appoint a successor Collateral Agent or Delegate Collateral Agent, as the case may be, who shall be a commercial bank or trust company reasonably acceptable to the Company; provided that the Company’s consent shall not be
required if an Event of Default exists at the time of appointment of such successor Agent. If no successor Agent shall have (i) been appointed by the Required Lenders and (ii) accepted such appointment within 15 Business Days of the giving
of such notice, the Facility Agent (acting on the instructions of the Required Lenders), with the consent of the Company (which shall not be unreasonably withheld or delayed), shall then appoint a commercial bank or trust company with capital and
surplus of not less than $500,000,000 as successor Collateral Agent or Delegate Collateral Agent (as applicable) who shall serve as Agent until such time, if any, as the Required Lenders appoint a successor Collateral Agent or Delegate Collateral
Agent (as applicable) as provided above; provided that the Company’s consent shall not be required pursuant to this clause (d) if an Event of Default exists at the time of appointment of a successor Agent.
|
|
|
(f)
|
If a successor to the Collateral Agent or the Delegate Collateral Agent is appointed under the provisions of this Deed (i) the retiring Agent shall be discharged
from any further obligations under, but shall remain entitled to the benefits of, this Deed and (ii) the successor trustee and each of the other Parties shall have same rights and obligations amongst themselves as they would have had if such
successor had been an original party to this Deed.
|
20
No party to
this Deed may assign all or any of its rights or transfer any of its obligations under this Deed except as expressly contemplated by this Deed, by the Credit Agreement or as may be required by law.
|
8.2
|
Change of Secured Creditor
|
Any person which is (subject only to its accession to this Deed) a permitted assignee or a transferee of a Lender, a transferee of a Term
Loan Hedging Creditor or a successor Facility Agent, in each case for the purposes of and in accordance with the terms of the Credit Agreement, shall be entitled to execute and deliver to the Collateral Agent a Secured Creditor Accession
Undertaking, a Transfer Certificate or Assignment Agreement and, with effect from (x) the date of acceptance by, where appropriate, the Facility Agent (or, if appropriate, the outgoing Facility Agent) and the Collateral Agent or (y) if
later, the date specified in that Secured Creditor Accession Undertaking, Transfer Certificate or Assignment Agreement:
|
|
(a)
|
the Secured Creditor ceasing to be a Lender and/or Facility Agent shall be discharged from further obligations towards the Collateral Agent and other Secured Creditors
under this Deed and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to such date); and
|
|
|
(b)
|
as from that date, the new Lender or Facility Agent shall assume the same obligations, and become entitled to the same rights as it would have had if it had been an
original party to this Deed in that capacity.
|
Any
Term Loan Hedging Creditor that wishes to become a Party to this Deed in the capacity as a Secured Creditor may become a Party by delivering to the Collateral Agent, a duly completed and executed Secured Creditor Accession Undertaking. With effect
from the date of acceptance by the Collateral Agent of a Secured Creditor Accession Undertaking duly executed and delivered to the Collateral Agent by such Term Loan Hedging Creditor or, if later, the date specified in that Secured Creditor
Accession Undertaking, the Term Loan Hedging Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Deed in that capacity.
|
9.1
|
Transaction and Enforcement Expenses
|
The Credit Parties shall, from time to time on demand of the Agents, reimburse the Agents:
|
|
(a)
|
for all reasonable documented out-of-pocket costs and expenses (including legal fees) properly incurred by the Agents, a Receiver or any Delegate in connection with the
negotiation, preparation and execution of this Deed and the Credit Documents and the completion of the transactions and perfection of the security contemplated in the Credit Documents; and
|
21
|
|
(b)
|
on a full indemnity basis, for all costs and expenses (including legal fees) incurred by the Agents, a Receiver or any Delegate in connection with the exercise,
preservation and/or enforcement of the Security, any of the rights, powers and remedies of the Agents and any proceedings instituted by or against the Agents as a consequence of taking or holding the Security or of enforcing those rights, powers and
remedies;
|
in each case, together with any applicable VAT thereon.
The Credit
Parties shall promptly pay all stamp, registration, notarial, documentary and other taxes or fees (including any penalties fines, supplements, surcharge or interest relating to such taxes) to which this Deed, the Credit Documents, the Transaction
Security or any judgment given in connection with them, is or at any time may be, subject and shall, from time to time, indemnify the Agents on demand against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax or fee.
If
any Credit Party fails to pay any sum on the due date for payment of that sum the relevant Credit Party shall pay interest on any such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on
such sum) from the date of demand until the date of payment calculated on a daily basis at the rate determined in accordance with the provisions of section 2.06(b) or (c) (
Interest
) (as applicable) of the Credit Agreement.
|
10.
|
AMENDMENTS AND RELEASES
|
The Company
and the Agents, if authorised by the Facility Agent, may amend the terms of, waive any of the requirements of, or grant consents under, this Deed any such amendment, waiver or consent shall be binding on all the Parties to this Deed and the Agents
shall be under no liability whatsoever in respect thereof
provided that
:
|
|
(i)
|
the prior consent of all of the Lenders is required to authorise any amendment to Clause 3.1 (
Order of Application
)), this Clause 10 or Clause 11
(
Termination of the Trusts
); and
|
|
|
(ii)
|
no new or additional obligations may be imposed upon, nor shall any amendment or waiver which relates to the rights of, the Facility Agent or of the Agents (including,
without limitation, Clause 4.3 (
Indemnity to Agents
)) be effective without the consent of the Facility Agent or, as the case may be, the Agents.
|
22
Upon:
|
|
(a)
|
a disposal of any of the Trust Property or Trust Property Delegated pursuant to the enforcement of the Security by a Receiver or the Agents;
|
|
|
(b)
|
a disposal of any of the Trust Property or Trust Property Delegated in accordance with section 14.21
(Release of Liens and the Parent Guaranty; Flag Jurisdiction
Transfer
) of the Credit Agreement; or
|
|
|
(c)
|
any other disposal of any of the Trust Property or Trust Property Delegated which is otherwise permitted under the Credit Documents,
|
the Agents shall (at the cost of the Credit Parties) release that property from the Transaction Security to which it is subject and may
execute, without the need for any further authority from the Secured Creditors, any release of the Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that may be required or desirable.
|
10.3
|
Release of Credit Parties
|
If a Credit Party ceases to be a Credit Party under the Credit Agreement then such Credit Party shall automatically be released as a
Credit Party under this Deed. Each of the Parties agrees that the Agents may release any of the Credit Parties from any guarantee or indemnity in the circumstances contemplated by the Credit Agreement. In the case of a Credit Party which is no
longer a Credit Party under the Credit Agreement, the Agents shall (at the cost of that Credit Party) release the Security granted by it and the Agents are authorised, without the need for further authority from the Secured Creditors, to execute
such agreements or deeds as are necessary to effect such a release.
|
11.
|
TERMINATION OF THE TRUSTS
|
The trusts set out in this Deed shall terminate on the Discharge Date. At that time the Agents shall release, without recourse or
warranty, all of the Transaction Security then held by it.
No
failure by the Agents to exercise, nor any delay by the Agents in exercising, any right or remedy under this Deed shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or other
exercise thereof or the exercise of any other such right or remedy.
|
13.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect or any of the Transaction Security is or becomes
23
ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Deed or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Transaction Security under the law of any other jurisdiction.
|
|
13.2
|
Potentially Avoided Payments
|
If the Agents determine that an amount paid to the Secured Creditors under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Deed, such amount shall be regarded as not having been paid.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Credit Party hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agents could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Credit Parties in respect of any sum due to the Agents hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged
only to the extent that on the Business Day following receipt by the Agents of any sum adjudged to be so due in such other currency the Agents may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Agents in the specified currency, each Credit Party agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agents against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Agents in the specified currency, the Agents agree to remit such excess to
the Company.
The
rights and remedies provided by this Deed are cumulative and not exclusive of any rights or remedies provided by law.
Where
there are any inconsistencies between the Trustee Acts and the provisions of this Deed, the provisions of this Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of
this Deed shall constitute a restriction or exclusion for the purposes of that Act.
24
|
13.6
|
Conflicting provisions
|
If there is any conflict between the provisions of this Deed and any Credit Document with regard to instructions to or other matters
affecting the Agents, this Deed will prevail. However, nothing in this Deed shall limit the ability of the Agents to exercise any rights, powers and discretions it may have in its capacity as a Secured Creditor.
Nothing contained in this Deed shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it.
Any consents
given by the Agents for the purposes of this Deed may be given on such terms and subject to such conditions (if any) as the Agents may require.
|
14.1
|
Communications in Writing
|
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 14.1 (
Communications in writing
), the contact details of each of the parties are as follows:
|
|
(a)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany,
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email: claudia.wenzel@kfw.de
|
|
(b)
|
to the Delegate Collateral Agent:
|
Domstrasse 18
D - 20095 Hamburg
Attn.: Marcus Weber / Anne Randewig
Fax: +49 40 3769 -9649
|
|
E-mail:
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
25
|
|
(c)
|
to the Facility Agent:
|
Palmengartenstrasse 5-9,
60325 Frankfurt am Main,
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
Email:
claudia.wenzel@kfw.de
|
|
(d)
|
to the Credit Parties:
|
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
with
copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email:
martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email:
bfinkelstein@omm.com
,
or to such other address and/or number as is notified in writing by a Party to the other Parties under this Deed.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified on Clause 14.2 (
Contact Details
) or in the case of the Original Secured Creditors at the addressed identified with its name in Schedule 1 hereto; provided that, with respect to all notices and other
communication made by electronic mail or other electronic means, the Agents, the Facility Agent and the
26
Company agree that they shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means
and they shall notify each other of any change to their address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails,
prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent
by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Agents or the Facility Agent shall not be effective until received by the Agents or the Facility Agent (as applicable), or
(iv) when electronic mailed, be effective only when actually received in readable form and in the case of any electronic communication made by the Company to the Agents or the Facility Agent, only if it is addressed in such a manner as the
Agents or the Facility Agent shall specify for this purpose.
|
15.
|
GOVERNING LAW AND JURISDICTION
|
This Deed
and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Each of the
parties hereto agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising our of or in connection with this Deed or any non-contractual obligations arising out of or in connection
with this Deed (“
Proceedings
”) and, for such purposes, irrevocably submits to the jurisdiction of such courts. Nothing in this Clause 15.2 shall (or shall be construed so as to) limit the right of any Secured Creditor to take
Proceedings in any other court of competent jurisdiction, nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings by any Secured Creditor in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by law.
For
the purpose of Clause 15.2 (
Jurisdiction
), the parties hereto irrevocably waive any objection which they might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and agree(s)
not to claim that any such court is not a convenient or appropriate forum.
The Credit
Parties agree that the process by which any Proceedings in England are begun may be served on it by being delivered to EC3 Services Limited at 51 Eastcheap, London, EC3M 1JP or, if different, its registered office for the time being. If such person
is not or ceases to be effectively appointed to accept service of process on behalf of the Credit Parties, the Credit Parties shall, on the written demand of any Secured Creditor, appoint a further person in England to accept service of process on
27
its behalf and, failing such appointment within 15 days, any Secured Creditor shall be entitled to appoint such a person by written notice to the Credit Parties. Nothing in this paragraph shall
affect the right of any Secured Creditor to serve process in any other manner permitted by law.
|
16.
|
COUNTERPARTS AND EFFECTIVENESS
|
This Deed
may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This Deed
shall take effect and be delivered as a deed on the date on which it is stated to be made notwithstanding that the Agents or any other Party may have executed it under hand only.
IN WITNESS WHEREOF
this Deed has been executed as a deed by the Credit Parties and has been signed on behalf of the Agents and other Parties.
28
SCHEDULE 1
ORIGINAL SECURED CREDITORS
|
|
|
|
|
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|
Domstrasse 18
D - 20095
Hamburg
Attn.: Marcus Weber / Anne Randewig
Telephone: +49 40 3769 -9646 / -9647
Facsimile: +49 40 3769 -9649
e-mail: marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
DNB NOR BANK ASA
|
|
Stranden 21
N-0021 Oslo,
Norway
Attn: Amra Koluder / Solveig N. Knoff
Telephone: +47 22 94 91 17 / 22 94 96 63
Facsimile: +47 22 48 28 94
e-mail: amra.koluder@dnbnor.no
solveig.knoff@dnbnor.no
|
|
|
|
|
HSBC BANK PLC
|
|
8 Canada Square
London E14
5HQ
Attn: Alan P. Marshall (FC1354)
Fax no: +44 207 992 4428
e-mail: alan.p.marshall@hsbcib.com
|
|
|
|
|
KFW IPEX-BANK GMBH
|
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431 4649 / 4037
Fax:
+49 69 7431 4466 / 2944
Attn: Ms Claudia
Wenzel /
Mr
Christian Schweiger
email: claudia.wenzel@kfw.de /
christian.schweiger@kfw.de
|
|
|
|
|
NORDEA BANK NORGE ASA
|
|
Middelthunsgate 17, P.O. Box 1166 Sentrum
NO-0107
Oslo, Norway
Attn: Arne Berglund
Telephone: (47) 22 484193
Facsimile: (47) 22 486668
e-mail: arne.berglund@nordea.com
|
29
SCHEDULE 2
FORM OF SECURED CREDITOR ACCESSION UNDERTAKING
|
To:
|
KfW IPEX-Bank GmbH and [
•
], for themselves and each of the other Secured Creditors to the Security Trust Deed referred to below.
|
THIS UNDERTAKING
is made on [
date
] by [
new Lender/Term Loan Hedging Creditor/Facility Agent/Receiver/Delegate
] (the
“
Acceding Secured Creditor
”) in relation to the Security Trust Deed (the “
Security Trust Deed
”) dated [
•
] between KfW IPEX-Bank GmbH as Collateral Agent, Deutsche Schiffsbank Aktiengesellschaft as
Delegate Collateral Agent, KfW IPEX-Bank GmbH as facility agent, the Secured Creditors named therein and the Credit Parties. Terms defined in the Security Trust Deed shall bear the same meanings when used in this Undertaking.
In consideration of the Acceding Secured Creditor being accepted as a Secured Creditor for the purposes of the Security Trust Deed, the Acceding Secured
Creditor hereby confirms that, as from [
date
], it intends to be party to the Security Trust Deed as a Secured Creditor, undertakes to perform all the obligations expressed in the Security Trust Deed to be assumed by [the Facility Agent and
by]/[a Secured Creditor] and agrees that it shall be bound by all the provisions of the Security Trust Deed, as if it had been an original party to the Security Trust Deed.
This Undertaking shall be governed by and construed in accordance with English law.
THIS
UNDERTAKING
has been entered into on the date stated above.
Acceding [Secured Creditor]/[Facility Agent]
|
|
|
By:
|
|
|
|
Address for Notices:
Fax:
For attention of:
|
|
|
|
Accepted by the Collateral Agent:
|
|
|
|
|
|
for and on behalf of
KfW
IPEX-Bank GmbH
|
|
|
|
Date:
|
|
|
|
Accepted by the [Facility Agent]/[outgoing Facility Agent]:
|
|
|
|
|
|
for and on behalf of
[Insert name of Facility Agent or
outgoing Facility Agent as appropriate]]
|
Date:
30
SIGNATORIES
|
|
|
|
|
|
|
THE COMPANY
|
|
|
|
|
|
|
|
|
|
Signed as a deed on behalf of
NORWEGIAN JEWEL LIMITED
, a company incorporated in the Isle of Man, by ___________________________, being a person who, in accordance with the
laws of that territory, is acting under the authority of the company
|
|
|
|
|
|
|
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|
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Authorised signatory
|
31
|
|
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|
|
THE PARENT
|
|
|
|
|
|
|
|
|
|
Signed as a deed on behalf of
NCL CORPORATION LTD
., a company incorporated in Bermuda, by __________________________, being a person who, in accordance with the laws of that
territory, is acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised signatory
|
32
THE ORIGINAL SECURED CREDITORS
|
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
acting by ____________________________:
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
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|
|
Director
|
33
|
|
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|
|
Executed as a deed by
DNB NOR BANK ASA,
acting by ________________________, in the presence of:
|
|
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|
|
|
|
|
|
|
Director
|
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Witness
|
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|
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|
|
Name:
|
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Address:
|
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|
|
Occupation:
|
34
|
|
|
|
|
|
|
SIGNED
and
DELIVERED
as a
DEED
by
|
|
)
|
|
.
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
acting by
|
|
)
|
|
|
|
its duly authorised attorney-in-fact
|
|
)
|
|
|
|
in the presence of:
|
|
)
|
|
Attorney-in-Fact
|
|
|
|
|
|
|
|
|
|
|
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|
|
Witness
|
|
|
|
|
|
|
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|
|
Name:
|
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|
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Address:
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|
|
Occupation:
|
35
|
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by ______________________:
|
|
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|
|
|
|
|
|
|
Director
|
|
|
|
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|
Director
|
36
|
|
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|
|
Executed as a deed by
NORDEA BANK
NORGE ASA
, acting by ________________:
|
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|
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|
Director
|
|
|
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|
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|
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|
|
|
|
Director
|
37
THE FACILITY AGENT
|
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by ______________________:
|
|
|
|
|
|
|
|
|
|
Director
|
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|
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|
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|
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|
Director
|
38
THE COLLATERAL AGENT
|
|
|
|
|
|
|
|
|
|
|
Executed as a deed by
KFW IPEX-BANK
GMBH
, acting by ______________________:
|
|
|
|
|
|
|
|
|
|
Director
|
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|
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|
Director
|
39
THE DELEGATE COLLATERAL AGENT
|
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|
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|
|
|
Executed as a deed by
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, acting by _____________________________________:
|
|
|
|
|
|
|
|
|
|
Director
|
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Director
|
EXHIBIT O-1
Dated [
—
] 2010
HULL NO. S. 678
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY ONE, LTD.
as Company
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
DELEGATION
|
|
|
6
|
|
|
3.
|
|
COVENANT TO PAY
|
|
|
6
|
|
|
4.
|
|
LEGAL ASSIGNMENT
|
|
|
6
|
|
|
5.
|
|
THE CONTRACT
|
|
|
7
|
|
|
6.
|
|
CONTINUING SECURITY
|
|
|
8
|
|
|
7.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
10
|
|
|
8.
|
|
UNDERTAKINGS
|
|
|
11
|
|
|
9.
|
|
FURTHER ASSURANCE
|
|
|
12
|
|
|
10.
|
|
ENFORCEMENT OF SECURITY
|
|
|
13
|
|
|
11.
|
|
RECEIVERS
|
|
|
13
|
|
|
12.
|
|
APPLICATION OF PROCEEDS
|
|
|
14
|
|
|
13.
|
|
POWER OF ATTORNEY
|
|
|
14
|
|
|
14.
|
|
RELEASE OF THE SECURITY
|
|
|
14
|
|
|
15.
|
|
PAYMENTS
|
|
|
15
|
|
|
16.
|
|
WAIVERS AND REMEDIES
|
|
|
15
|
|
|
17.
|
|
ADDITIONAL PROVISIONS
|
|
|
15
|
|
|
18.
|
|
ASSIGNMENT
|
|
|
16
|
|
|
19.
|
|
NOTICES
|
|
|
17
|
|
|
20.
|
|
GOVERNING LAW
|
|
|
19
|
|
|
21.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
19
|
|
|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
|
|
20
|
|
|
SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
23
|
|
|
SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
|
25
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY ONE, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Company
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
|
(3)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the “
Delegate
”, which expression includes any person which is for the time being a delegate appointed
by the Collateral Agent for the purposes of this Assignment.
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
|
(C)
|
The Company and the Delegate intend this Assignment to take effect as a deed.
|
|
(D)
|
Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreements, the Security Trust Deeds and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and
benefits in, to and in respect of the Refund Guarantees.
“
Borrower
” means Pride of Hawaii, LLC
(“
POH
”) with respect to the Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway One Credit Facility
” means the €529,846,154 credit agreement dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint
Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated 24 September 2010 between the Company, the Parent and
the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit
Agreements.
“
ECF Security Trust Deed
” means the security trust deed dated on or about the date hereof
between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Export Credit Facilities.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreements.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Company, the Lenders, the lenders under the Breakaway One Credit
Facility, the collateral agent under the Breakaway One Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the Jewel Credit Facility).
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof,
among inter alia, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
, the Parent, POH, the Collateral Agent, the Delegate Collateral Agent
and the Facility Agent.
“Jewel Credit Facility”
means the €126,075,000 delayed-draw term loan facility,
dated on or about the date hereof, among inter alia, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
2
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest
Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and
assigns, if any.
“
Other Vessel 1 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on
or about the date hereof between the Company, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the ECF Security Trust Deeds to act as security trustee for and on behalf of the ECF Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund
Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
3
“
Security Period
” means the period beginning on the date of this Assignment
and ending on the date upon which the Delegate is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreements).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.678 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
4
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
5
|
2.1
|
Pursuant to the Security Trust Deeds, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights,
powers and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deeds including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deeds. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Company agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to any Enforcement
Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Delegate.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured Obligations.
|
4.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees).
|
|
5.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect
and enforce the interests of the Delegate in the Refund Guarantees.
7
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 1 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate
under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
8
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
9
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Company acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreements, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
10
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway One Credit Facility and the
Credit Agreements, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway One Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreements; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
11
|
8.3
|
Notification of Misrepresentation
|
The Company shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Delegate until delivered
provided that
,
to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 8.5 to the extent that it fulfils its obligations under clause 8.5 (
Delivery of Cash
) of the Other Vessel 1
Assignment of KfW Refund Guarantees.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such
notices and directions as the Delegate may consider necessary.
12
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate shall act in accordance with the instructions of the Collateral Agent who shall act in accordance with the terms of any instructions received under the Intercreditor
Agreement for the purposes of exercising (or refraining from exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Delegate may in its absolute discretion enforce all or any part
of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply
the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the Delegate
may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for all purposes the
agent of the Company.
13
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
14
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Company
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
15
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Company in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such excess to the
Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway One Credit Facility and the Credit Agreements.
16
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit Agreements.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deeds.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
|
|
(b)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
7665
Corporation Center Drive
Miami, Florida 33126
USA
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
17
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Company agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Company to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
18
|
|
(a)
|
This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
|
|
(b)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
|
|
|
(c)
|
Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the Collateral Agent and/or the Delegate may appoint another agent for this purpose.
|
|
|
(d)
|
Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
|
|
21.
|
COUNTERPARTS AND EFFECTIVENESS
|
This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company, the Collateral Agent and the Delegate.
19
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
|
To:
|
KfW IPEX-Bank GmbH as Refund Guarantor
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: [
—
]
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
|
Cc:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
Date: [
—
]
Dear Sirs
We hereby give you notice that pursuant to an assignment agreement dated [
—
] (the
“
Assignment
”) and made between Breakaway One, Ltd. (the “
Company
”), KfW IPEX-Bank GmbH as Collateral Agent and [
—
] as delegate (the “
Delegate
”), the
Company has assigned to the Delegate a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of the refund guarantee dated [
—
] and issued by you
as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”),
including all monies which may be payable under or in respect of the Refund Guarantee.
20
With effect from your receipt of this notice we hereby give you notice that:
|
(a)
|
all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
|
|
(b)
|
following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH
as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL
Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which
Event of Default has been delivered to you by the Delegate, all remedies of the Company provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Delegate;
|
|
(c)
|
following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
|
|
(d)
|
all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
|
|
(e)
|
the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
(f)
|
the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
|
|
(g)
|
the Delegate has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Company) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
|
21
|
(h)
|
the Company has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time to
time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
|
|
(i)
|
the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
|
You are
hereby authorised and instructed, without requiring further approval from the Company, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
|
|
|
Yours faithfully
|
|
|
|
|
|
For and on behalf of
BREAKAWAY ONE, LTD.
|
22
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[
To be printed only on copy of the Notice of
Assignment given
]
|
To:
|
Deutsche Schiffsbank Aktiengesellschaft as Delegate
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
|
|
|
|
anne.randewig@commerzbank.com
|
|
Cc:
|
KfW IPEX-Bank GmbH as Collateral Agent
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69 7431 2944
E-mail: claudia.wenzel@kfw.de
Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice in the terms set out above (the
“
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in respect of senior liens held by the
Delegate as security trustee on behalf of certain “ECF creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title, interests and benefits in, to or in
respect of the Refund Guarantee and that we will comply with the terms of the Notice.
23
We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the
Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
Yours faithfully
|
|
|
|
|
For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
|
|
|
|
|
By:
|
|
|
Date:
24
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
|
|
|
|
|
[Name of Issuer]
|
|
[Date of Refund Guarantee]
|
25
SIGNATORIES
|
|
|
|
|
Signed as a deed on behalf of
BREAKAWAY ONE, LTD
, a company incorporated in Bermuda, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s]
who, in accordance with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
|
|
|
|
Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a company incorporated in Germany, by [
full name(s) of person(s) signing
], being [a] person[s] who, in accordance
with the laws of that territory, [is][are] acting under the authority of the company
|
|
|
|
|
|
|
|
|
|
Authorised [signatory] [signatories]
|
26
EXHIBIT O-2
Dated [
—
] 2010
HULL NO. S. 692
FORM OF ASSIGNMENT OF KFW REFUND GUARANTEES
between
BREAKAWAY TWO, LTD.
as Company
and
KFW
IPEX-BANK GMBH
as Collateral Agent
and
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT
as Delegate
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
INTERPRETATION
|
|
|
1
|
|
|
2.
|
|
DELEGATION
|
|
|
6
|
|
|
3.
|
|
COVENANT TO PAY
|
|
|
6
|
|
|
4.
|
|
LEGAL ASSIGNMENT
|
|
|
6
|
|
|
5.
|
|
THE CONTRACT
|
|
|
7
|
|
|
6.
|
|
CONTINUING SECURITY
|
|
|
8
|
|
|
7.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
10
|
|
|
8.
|
|
UNDERTAKINGS
|
|
|
11
|
|
|
9.
|
|
FURTHER ASSURANCE
|
|
|
12
|
|
|
10.
|
|
ENFORCEMENT OF SECURITY
|
|
|
13
|
|
|
11.
|
|
RECEIVERS
|
|
|
13
|
|
|
12.
|
|
APPLICATION OF PROCEEDS
|
|
|
14
|
|
|
13.
|
|
POWER OF ATTORNEY
|
|
|
14
|
|
|
14.
|
|
RELEASE OF THE SECURITY
|
|
|
14
|
|
|
15.
|
|
PAYMENTS
|
|
|
15
|
|
|
16.
|
|
WAIVERS AND REMEDIES
|
|
|
15
|
|
|
17.
|
|
ADDITIONAL PROVISIONS
|
|
|
15
|
|
|
18.
|
|
ASSIGNMENT
|
|
|
16
|
|
|
19.
|
|
NOTICES
|
|
|
17
|
|
|
20.
|
|
GOVERNING LAW
|
|
|
19
|
|
|
21.
|
|
COUNTERPARTS AND EFFECTIVENESS
|
|
|
19
|
|
|
SCHEDULE 1 FORM OF NOTICE OF ASSIGNMENT
|
|
|
20
|
|
|
SCHEDULE 2 FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
|
|
|
23
|
|
|
SCHEDULE 3 DETAILS OF REFUND GUARANTEES
|
|
|
25
|
|
White & Case
LLP
5 Old Broad Street
London EC2N 1DW
THIS ASSIGNMENT is dated
[
—
]
2010
BETWEEN:
|
(1)
|
BREAKAWAY TWO, LTD.
, a Bermuda company with its registered office as of the date hereof at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the
“
Company
”); and
|
|
(2)
|
KFW IPEX-BANK GMBH
as collateral agent under each Credit Agreement for and on behalf of the Secured Creditors under and as defined in such Credit Agreement (the
“
Collateral Agent
”, which expression includes any person which is for the time being a collateral agent for the Secured Creditors for the purposes of this Assignment).
|
|
(3)
|
DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT,
the “
Delegate
”, which expression includes any person which is for the time being a delegate appointed
by the Collateral Agent for the purposes of this Assignment.
|
RECITALS
|
(A)
|
The applicable Lenders are willing to make a loan facility available to the Borrowers on the terms and subject to the conditions set out in the Credit Agreements, on
condition that the Company enters into this Assignment as security for the Borrowers’ obligations and Liabilities as Borrower under or in relation to the Credit Documents.
|
|
(B)
|
The Board of Directors of the Company is satisfied that the Company is entering into this Assignment for the purposes of its business and that its doing so benefits the
Company.
|
|
(C)
|
The Company and the Delegate intend this Assignment to take effect as a deed.
|
|
(D)
|
Pursuant to the provisions of Clause 2 (
Delegation
) below, the Delegate holds the benefit of this Assignment on trust [for itself and] for the Secured Creditors
on the terms of the Credit Agreements, the Security Trust Deeds and the Intercreditor Agreement.
|
In this
Assignment the following terms have the meanings given to them in this Clause.
“
Acknowledgment of Assignment
”
means a duly completed acknowledgement of assignment in the form set out in Schedule 2 (
Form of Acknowledgement of Assignment
) or in such other form as may be approved by the Delegate.
“
Agent
” means each Agent under and as defined in each Credit Agreement.
“
Agreed Rate
” means the rate specified in section 2.06(b) and 2.06(c) (
Interest
) of each Credit Agreement.
“
Assigned Rights
” means the Company’s rights, title, interest and
benefits in, to and in respect of the Refund Guarantees.
“
Borrower
” means Pride of Hawaii, LLC
(“
POH
”) with respect to the Jade Credit Facility and Norwegian Jewel Limited (“
NJL
”) with respect to the Jewel Credit Facility.
“
Breakaway Two Credit Facility
” means the €529,846,154 credit agreement dated on or about the date hereof among,
inter alia
, the Parent, the Company, as borrower, the Joint
Lead Arrangers (as defined therein), the Lenders (as defined therein), the Collateral Agent (as defined therein), Nordea Bank Norge ASA, as documentation agent and Commerzbank Aktiengesellschaft, as Hermes Agent.
“
Construction Contract
” means the construction contract dated 24 September 2010 between the Company, the Parent and
the Shipbuilder in relation to the design, engineering, building, launching, equipping and outfitting of the Vessel.
“
Credit Agreements
” means the Jade Credit Facility and the Jewel Credit Facility.
“
Credit Agreement Obligations
” means “Credit Document Obligations” as defined in the applicable Credit
Agreements.
“
ECF Security Trust Deed
” means the security trust deed dated on or about the date hereof
between,
inter alia
, the Collateral Agent as security trustee, the Facility Agent and the Lenders under (and as defined in each of) the Export Credit Facilities.
“
Enforcement Proceeds
” means any enforcement proceeds recovered in respect of the Security.
“
Event of Default
” means an “Event of Default” as defined in the Credit Agreements.
“
Intercreditor Agreement
” means the intercreditor deed dated on or about the date hereof between,
inter alia
, the Company, the Lenders, the lenders under the Breakaway Two Credit
Facility, the collateral agent under the Breakaway Two Credit Facility, and the Collateral Agent (in its capacity as collateral agent under each of the Jade Credit Facility and the Jewel Credit Facility).
“Jade Credit Facility”
means the €126,075,000 delayed-draw term loan facility, dated on or about the date hereof,
among inter alia, POH, as borrower, the Parent, the Lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
“Jade Security Trust Deed”
means the security trust deed dated on or about the date hereof between,
inter alia
, the Parent, POH, the Collateral Agent, the Delegate Collateral Agent
and the Facility Agent.
“Jewel Credit Facility”
means the €126,075,000 delayed-draw term loan facility,
dated on or about the date hereof, among inter alia, NJL, as borrower, the Parent, the lenders from time to time party thereto, KfW IPEX-Bank GmbH as facility agent and the Collateral Agent.
2
“Jewel Security Trust Deed”
means the security trust deed dated on or about
the date hereof between,
inter alia
, the Parent, NJL, the Collateral Agent, the Delegate Collateral Agent and the Facility Agent.
“
Lender
” means each Lender under and as defined in each Credit Agreement.
“
Lender Creditors
” means the Agents and the Lenders.
“
Liability
” means any liability for the payment of money, whether in respect of principal, interest or otherwise, whether
actual or contingent, whether owed jointly or severally and whether owed as principal or surety or in any other capacity.
“
Notice of Assignment
” means a duly completed notice of assignment in the form set out in Schedule 1 (
Form of Notice
of Assignment
) or in such other form as may be approved by the Delegate.
“
Other Creditors
” means each
Lender or any affiliate thereof with which the applicable Borrower and/or the Parent may at any time and from time to time after the date hereof enter into, or guaranty the obligations of one or more of its Subsidiaries under one or more Interest
Rate Protection Agreements or Other Hedging Agreements (even if the respective Lender subsequently ceases to be a Lender under the applicable Credit Agreement for any reason), together with such Lender’s or affiliate’s successors and
assigns, if any.
“
Other Vessel 2 Assignment of KfW Refund Guarantees
” means the assignment agreement dated on
or about the date hereof between the Company, and the Delegate appointed by the Collateral Agent as its delegate pursuant to the ECF Security Trust Deeds to act as security trustee for and on behalf of the ECF Creditors (as defined in the
Intercreditor Agreement) in respect of the Refund Guarantees.
“
Parent
” means NCL Corporation Ltd., a Bermuda
company.
“
Receiver
” means a receiver and manager or any other receiver (whether appointed pursuant to this
Assignment, pursuant to any statute, by a court or otherwise) of any of the Assigned Rights.
“
Refund
Guarantees
” means any and all refund guarantees from time to time issued in favour of the Company by KfW IPEX-Bank GmbH as refund guarantor to secure certain obligations of the Shipbuilder under the Construction Contract.
“
Secured Creditors
” means the Lender Creditors and the Other Creditors.
“
Secured Obligations
” means the Credit Agreement Obligations and the Other Obligations.
“
Security
” means the security created by this Assignment.
“
Security Period
” means the period beginning on the date of this Assignment and ending on the date upon which the
Delegate is satisfied that:
|
|
(a)
|
none of the Secured Creditors is under any obligation (whether actual or contingent) to make advances or provide other financial accommodation to the Company under any
of the Credit Documents; and
|
3
|
|
(b)
|
all Secured Obligations have been unconditionally and irrevocably paid and discharged in full (other than (i) contingent liabilities for which no claim has been
made and (ii) indemnities, expense reimbursements or any other contingent liabilities that expressly survive the termination of the Credit Agreements).
|
“
Security Trust Deeds
” means the Jade Security Trust Deed and the Jewel Security Trust Deed.
“
Shipbuilder
” means Meyer Werft GmbH.
“
Vessel
”
means the post-panamax luxury passenger cruise vessel with approximately 143,500 gt and the provisional hull number S.692 to be constructed by the Shipbuilder.
|
1.2
|
Continuing Event of Default
|
An Event of Default shall be regarded as continuing if (a) the circumstances constituting such event continue and (b) such Event of Default has not been waived in accordance with the terms of
the Credit Documents.
Unless
this Assignment provides otherwise, a term which is defined (or expressed to be subject to a particular construction) in the Credit Agreements or in the Intercreditor Agreement shall have the same meaning (or be subject to the same construction) in
this Assignment.
|
1.4
|
References to Agreements
|
Unless otherwise stated, any reference in this Assignment to any agreement or document (including any reference to this Assignment or any
other Credit Document) shall be construed as a reference to:
|
|
(a)
|
such agreement or document as amended, varied, novated or supplemented from time to time;
|
|
|
(b)
|
any other agreement or document whereby such agreement or document is so amended, varied, novated or supplemented; and
|
|
|
(c)
|
any other agreement or document entered into pursuant to or in accordance with such agreement or document.
|
A
certificate of any Secured Creditor as to the amount of any Secured Obligation owed to it shall be
prima facie
evidence of the existence and amount of such Secured Obligation.
4
Any reference
in this Assignment to a statute or statutory provision shall, unless the contrary is indicated, be construed as a reference to such statute or statutory provision as the same shall have been or may be amended or re-enacted.
The
following provisions of the Law of Property (Miscellaneous Provisions) Act 1994 will not apply to Clause 4.1 (
Assignment
) or Clause 4.2 (
Notice of Assignment
):
|
|
(a)
|
the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about” in Section 3(1);
|
|
|
(b)
|
the words “except to the extent that” and all the words thereafter in Section 3(2); and
|
It is
intended that with the consent of the Collateral Agent each of the other Secured Creditors shall be able to enforce the provisions of Clause 17.4 (
Currency Indemnity
) (which can be amended with the consent of the Collateral Agent but
without the consent of the other Secured Creditors), but otherwise a person which is not a party to this Assignment shall have no rights to enforce the provisions of this Assignment other than those it would have had if the Contracts (Rights of
Third Parties) Act 1999 had not come into effect.
|
1.9
|
Clause and Schedule Headings
|
Clause and Schedule headings are for ease of reference only and shall not affect the construction of this Assignment.
This
Assignment is subject to the terms of the Intercreditor Agreement.
5
|
2.1
|
Pursuant to the Security Trust Deeds, the Collateral Agent hereby appoints the Delegate to act as trustee with respect to this Assignment and to have such rights,
powers and duties as the Collateral Agent has or may have pursuant to the terms of the Security Trust Deeds including without limitation, the right to be indemnified under Clause 5.1 (
Credit Parties’ Indemnity to Collateral Agent)
of the
Security Trust Deeds. The Delegate hereby accepts such appointment and agrees that it shall exercise all such rights, powers and duties in accordance with the instructions of the Collateral Agent, or in the absence of such instructions, in such
manner as it shall reasonably determine acting in good faith and if the Collateral Agent so requires, shall appoint the Collateral Agent to exercise all and any of such rights, powers and duties in its name and on its behalf.
|
The
Company agrees that promptly on demand of the Delegate it will pay to the Delegate any Secured Obligation that is due and owing by the Company provided that any recourse to the Company pursuant to this Assignment shall be limited to any Enforcement
Proceeds.
Any amount
which is owed by the Company under this Assignment and is not paid when due shall bear interest at the Agreed Rate from the due date until the date on which such amount is unconditionally and irrevocably paid in full and such interest shall accrue
from day to day (after as well as before judgment) and be payable by the Company on demand of the Delegate.
The Company
hereby assigns with full title guarantee the Assigned Rights to the Delegate to hold the same on behalf of the Secured Creditors on the terms set out in the Security Trust Deeds as security for the payment and discharge of the Secured Obligations.
|
4.2
|
Non-Assignable Rights
|
The Company declares that to the extent that any right, title, interest or benefit described in Clause 4.1 (
Assignment
) is for
any reason not effectively assigned pursuant to Clause 4.1 (
Assignment
) for whatever reason, it shall:
|
|
(a)
|
hold the benefit of the same on trust for the Delegate as security for the payment and discharge of the Secured Obligations; and
|
|
|
(b)
|
promptly upon becoming aware of the same, notify the Delegate of the same and the reasons therefore and thereafter take such steps as the Delegate may reasonably
require to remove such prohibition or other reason for such incapacity.
|
6
|
|
(a)
|
As soon as practicable after the execution of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a Notice of Assignment and if the Delegate so requests
the Company shall countersign such Notice of Assignment.
|
|
|
(b)
|
As soon as practicable after the execution of any Refund Guarantee entered into after the date of this Assignment, the Company shall deliver to KfW IPEX-Bank GmbH, a
Notice of Assignment in respect of such Refund Guarantee.
|
|
4.4
|
Acknowledgment of Assignment
|
The Company shall use commercially reasonable efforts to procure that as soon as practicable after KfW IPEX-Bank GmbH receives a Notice of Assignment, KfW IPEX-Bank GmbH shall deliver to the Delegate an
Acknowledgment of Assignment in substantially the form attached hereto or otherwise reasonably acceptable to the Delegate.
|
5.1
|
No Dealings with the Refund Guarantee
|
|
|
(a)
|
The Company acknowledges that at all times during the Security Period and other than as expressly set out below, it shall not (nor shall it be entitled to):
|
|
|
(i)
|
receive any payments under or in respect of the Refund Guarantees;
|
|
|
(ii)
|
agree to any waiver or amendment of or supplement to the terms of the Refund Guarantees other than where the prior written consent is given by the Joint Lead Arrangers
(not to be unreasonably withheld) to such waiver, amendment or supplement;
|
|
|
(iii)
|
terminate, or allow to be terminated, any Refund Guarantee other than where an equivalent replacement Refund Guarantee is entered into by the Company on or prior to
such termination or where the prior written consent is given by the Facility Agent (not to be unreasonably withheld) to such termination; or
|
|
|
(iv)
|
assign, charge or dispose of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees).
|
|
5.2
|
Performance of Obligations
|
The Company shall take, or cause to be taken, all steps reasonably required by the Delegate to preserve or protect its interests and the
interests of the Delegate in the Refund Guarantees and shall diligently pursue any remedies available to it in respect of any breaches or claims of any party in connection with any of the Refund Guarantees which are necessary to preserve, protect
and enforce the interests of the Delegate in the Refund Guarantees.
7
|
6.1
|
Continuing and Independent Security
|
This Assignment shall constitute and be continuing security which shall not be released or discharged by any intermediate payment or settlement of all or any of the Secured Obligations, shall continue in
full force and effect until the end of the Security Period and is in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of set-off) which the Delegate may have at any time for the Secured
Obligations or any of them.
If the
Delegate receives notice of any security created or arising during the Security Period in respect of the Refund Guarantees or any of the Assigned Rights (other than pursuant to the Other Vessel 2 Assignment of KfW Refund Guarantees), or following
the occurrence and during the continuation of an Event of Default makes demand of the Parent or the applicable Borrower for payment of any or all of the Secured Obligations:
|
|
(a)
|
the Delegate may open a new account or accounts in respect of any or all of the Secured Obligations (and if it does not do so it shall be treated as if it had done so
at the time it received such notice or made such demand); and
|
|
|
(b)
|
thereafter any amounts paid by the Parent or the applicable Borrower to the Delegate in respect of the Secured Obligations, or realised or recovered by the Delegate
under this Assignment, shall be credited (or be treated as having been credited) to a new account and not as having been applied in or towards payment of all or any of the Secured Obligations.
|
|
6.3
|
Avoidance of Payments
|
Where any release, discharge or other arrangement in respect of any Secured Obligation or any security the Delegate may have for such
Secured Obligation is given or made in reliance on any payment or other disposition which is avoided or must be repaid in an insolvency, liquidation or otherwise, and whether or not the Delegate has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid, this Assignment and the Security shall continue as if such release, discharge or other arrangement had not been given or made.
Neither the Delegate nor any other Secured Creditor shall be obliged before exercising any of the rights conferred on it or them by this
Assignment or by law to seek to recover amounts due from the Parent or to exercise or enforce any other rights or security it or they may have or hold in respect of the Secured Obligations.
8
Neither the obligations of the Company under this Assignment nor the Security and the rights, powers and remedies conferred on the
Delegate by this Assignment or by law, shall be discharged, impaired or otherwise affected by:
|
|
(a)
|
the winding-up, dissolution, administration or reorganisation of the Company or any other person or any change in the status, function, control or ownership of the
Company or any such person;
|
|
|
(b)
|
any of the Secured Obligations or any other security held by the Delegate in respect thereof being or becoming illegal, invalid, unenforceable or ineffective in any
respect;
|
|
|
(c)
|
any time or other indulgence being granted or agreed to with the Company or any other person in respect of the Secured Obligations or any of them or in respect of any
other security held by the Delegate in respect thereof;
|
|
|
(d)
|
any amendment to, or any variation, waiver or release of, the Secured Obligations or any of them or any other security, guarantee or indemnity held by the Delegate in
respect thereof;
|
|
|
(e)
|
any total or partial failure to take or perfect any security proposed to be taken in respect of the Secured Obligations or any of them;
|
|
|
(f)
|
any total or partial failure to realise the value of, or any release, discharge, exchange or substitution of, any other security, guarantee or indemnity held by the
Delegate in respect of the Secured Obligations or any of them; or
|
|
|
(g)
|
any other act, event or omission which might operate to discharge, impair or otherwise affect the obligations of the Company under this Assignment, the Security or any
of the rights, powers and remedies conferred on the Delegate by this Assignment or by law.
|
Neither
the Collateral Agent, the Delegate nor any other Secured Creditor shall be obliged to apply any sums held or received by it in respect of the Secured Obligations in or towards payment of the Secured Obligations and any such sum shall be held by or
paid to the Collateral Agent for application pursuant to the terms of this Assignment, until the earlier of:
|
|
(a)
|
the date on which such monies are sufficient to satisfy the Secured Obligations in full and any money so applied could not be the subject of any clawback or similar
circumstance; and
|
|
|
(b)
|
the date on which the Security has been enforced in full and all other remedies that the Collateral Agent may have under or in connection with the Credit Documents in
all relevant jurisdictions have been exhausted.
|
9
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Company makes the representations and warranties set out in Clauses 7.1 (
Entity Status
) to 7.8 (
Refund Guarantee Terms
). The Company acknowledges that each of the Collateral Agent
and the Delegate has entered into this Assignment in reliance on those representations and warranties.
The
Company (i) is a Person duly organized, constituted and validly existing (or the functional equivalent) under the laws of the jurisdiction of its formation, has the capacity to sue and be sued in its own name and the power to own and charge its
assets and carry on its business as it is now being conducted and (ii) is duly qualified and is authorized to do business and is in good standing (or the functional equivalent) in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized or in good standing which, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
The
Company has the power to enter into and perform this Assignment and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Assignment and such transactions. This Assignment
constitutes legal, valid and binding obligations of the Company enforceable in accordance with its terms and in entering into this Assignment and borrowing the Loans, the Company is acting on its own account.
|
7.3
|
Form of Documentation
|
This Assignment is in proper legal form (under the laws of England, the Bahamas, Bermuda and each other jurisdiction where the Vessel is
flagged or where the Company is domiciled) for the enforcement thereof under such laws. To ensure the legality, validity, enforceability or admissibility in evidence of this Assignment in England, the Bahamas and/or Bermuda it is not necessary that
this Assignment be filed or recorded with any court or other authority in England, the Bahamas and Bermuda, except as have been made, or will be made, in accordance with Section 5, 6, 7 and 8 of the Credit Agreements, as applicable.
|
7.4
|
No Deductions or Withholdings
|
All amounts payable by the Company hereunder may be made free and clear of and without deduction or withholding for or on account of any Taxation in the Company’s jurisdiction.
|
7.5
|
No Filing or Stamp Taxes
|
It is not necessary that this Assignment be filed, recorded or enrolled with any court or other authority in England (or any other
applicable jurisdiction) except as have been made or will be made in accordance with the Credit Agreements, or that any stamp, registration or similar tax be paid on or in relation to this Assignment save (i) to the extent that it may be
regarded as constituting a charge over book debts and thus as registrable under the Companies Act 2006 and (ii) recording taxes which have been or will be paid as and to the extent due.
10
Subject only to the Security and as otherwise contemplated under the Intercreditor Agreement, the Breakaway Two Credit Facility and the
Credit Agreements, no person other than the Company has any legal or beneficial interest (or any right to claim any such interest) in the Assigned Rights or any part thereof and the Company has not received notice of any such claim.
Save as
permitted by the Breakaway Two Credit Facility, each Credit Agreement, this Assignment or the Intercreditor Agreement, it has not transferred, mortgaged, charged or otherwise disposed of (or agreed to transfer, charge or otherwise dispose of),
whether by way of security or otherwise, the benefit of all or any of the Assigned Rights.
|
7.8
|
Refund Guarantee Terms
|
The terms of the Refund Guarantees do not restrict or otherwise limit its right to transfer, charge or assign any of the Assigned Rights
pursuant to this Assignment.
The
representations and warranties set out in this Clause 7:
|
|
(a)
|
shall survive the execution of each Credit Document and each Borrowing under the Credit Agreements; and
|
|
|
(b)
|
are made on the date of this Assignment and are deemed to be repeated on each date during the Security Period with reference to the facts and circumstances then
existing.
|
The
Company shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws of England and any other applicable jurisdiction to
enable it lawfully to enter into and perform its obligations under this Assignment and to ensure the legality, validity, enforceability or admissibility in evidence in England and any other applicable jurisdiction of this Assignment.
The Company
shall not take any action which would cause any of the representations made in Clause 7 (
Representations and Warranties
) to be untrue in any material respect at any time during the Security Period.
11
|
8.3
|
Notification of Misrepresentation
|
The Company shall notify each of the Collateral Agent and the Delegate of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in
Clause 7 (
Representations and Warranties
) being untrue in any material respect when made or when deemed to be repeated.
|
|
(a)
|
The Company shall provide each of the Collateral Agent and the Delegate with such reports and other information regarding the Refund Guarantees as the Collateral Agent
and/or the Delegate may from time to time reasonably request.
|
|
|
(b)
|
Following the Initial Borrowing Date, the Company shall, as soon as reasonably practicable after an additional Refund Guarantee has been issued, deliver a supplement to
Schedule 3 (
Details of Refund Guarantees
) to the Collateral Agent and/or the Delegate with updated information relating to such Refund Guarantee.
|
Following the occurrence and during the continuation of an Event of Default, the Company shall promptly deliver all cash, proceeds,
cheques, drafts, orders and other instruments for the payment of money received on account of any of the Refund Guarantees in the form received (properly endorsed, but without recourse, for collection where required) to the Delegate and shall not
commingle any such collections or proceeds with its other funds or property and shall, subject to the terms of the Intercreditor Agreement, hold the same upon an express trust for and on behalf of the Delegate until delivered
provided that
,
to the extent that the Intercreditor Agreement remains operative, the Company shall be relieved of its obligations under this clause 8.5 to the extent that it fulfils its obligations under clause 8.5 (
Delivery of Cash
) of the Other Vessel 2
Assignment of KfW Refund Guarantees.
The
Company shall promptly deliver a copy of any notice or other correspondence received by it in connection with any of the Refund Guarantees to each of the Collateral Agent and the Delegate if such notice or correspondence has had or could reasonably
be expected to have a material adverse effect on the value of such Refund Guarantee.
The
Company shall from time to time and at its own expense give all such assurances and do all such things as the Collateral Agent and/or the Delegate may reasonably require or consider desirable to enable the Delegate to perfect, preserve or protect
the security created or intended to be created by this Assignment or to exercise any of the rights conferred on it by this Assignment or by law and to that intent the Company shall execute all such instruments, deeds and agreements and give all such
notices and directions as the Delegate may consider necessary.
12
|
10.
|
ENFORCEMENT OF SECURITY
|
|
10.1
|
Security Enforceable
|
The
Security shall become immediately enforceable if an Event of Default has occurred and is continuing.
Following
the occurrence and during the continuation of an Event of Default, the Delegate shall act in accordance with the instructions of the Collateral Agent who shall act in accordance with the terms of any instructions received under the Intercreditor
Agreement for the purposes of exercising (or refraining from exercising) any of its rights to enforce all or any part of the Security, and in the absence of any such instructions, the Delegate may in its absolute discretion enforce all or any part
of the Security and exercise any of the rights conferred on it by this Assignment or by law at such times and in such manner as it thinks fit.
Subject to
the terms of the Intercreditor Agreement, following the occurrence and during the continuation of an Event of Default, the Delegate may (without notice to the Company) sell or otherwise dispose of the Assigned Rights and shall be entitled to apply
the proceeds of such sale or other disposal in paying the costs of such sale or disposal and thereafter in or towards the discharge of the Secured Obligations or otherwise as provided for in this Assignment.
For the
purposes of all powers implied by statute the Secured Obligations shall be deemed to have become due and payable on the date of this Assignment.
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to this Assignment or to any exercise by the Delegate of its right to
consolidate mortgages or its power of sale.
|
10.6
|
Realisation Accounts
|
If
the Delegate enforces the Security (whether by appointment of a Receiver or otherwise), the Delegate may open and maintain with such financial institutions as it thinks fit one or more realisation accounts and pay any moneys it holds or receives
under or pursuant to this Assignment into any such realisation account pending the application of such moneys pursuant to Clause 12 (
Application of Proceeds
).
|
11.1
|
Appointment of Receivers
|
At any time after the occurrence and during the continuation of an Event of Default, or if the Company requests it to do so, the Delegate
may by a written instrument and without notice to the Company appoint one or more persons as Receiver of all or any part of the Assigned Rights, each such person being entitled to act individually as well as jointly and being for all purposes the
agent of the Company.
13
|
11.2
|
Powers of a Receiver
|
In
addition to the powers conferred on the Delegate by this Assignment, each Receiver appointed pursuant to Clause 11.1 (
Appointment of Receivers
) shall have in relation to the Assigned Rights in respect of which such Receiver was appointed
all the powers conferred by the Law of Property Act 1925 (as extended by this Assignment) on a Receiver appointed under that Act.
|
12.
|
APPLICATION OF PROCEEDS
|
|
|
(a)
|
Any amounts received or recovered by the Delegate pursuant to or in connection with this Assignment shall be promptly paid to the Collateral Agent and pending such
payment the Delegate shall hold such amounts on trust for the Collateral Agent.
|
|
|
(b)
|
Any moneys held or received by the Collateral Agent pursuant to paragraph (a) above shall be applied by the Collateral Agent in or towards the discharge of the
Secured Obligations in accordance with the provisions of the Intercreditor Agreement.
|
By way of
security for the performance of its obligations under this Assignment, the Company hereby irrevocably appoints the Delegate to be its attorney on its behalf and in its name or otherwise to do any and every thing which the Company is obliged to do
under the terms of this Assignment or which the Delegate considers necessary or desirable in order to enable the Delegate to exercise the rights conferred on it by this Assignment or by law.
The Company
hereby ratifies and confirms and agrees to ratify and confirm whatever the Delegate shall do in its capacity as such.
|
14.
|
RELEASE OF THE SECURITY
|
After the end of the Security Period or otherwise in accordance with Section 14.21 (
Release of Liens and the Parent Guaranty; Flag
Jurisdiction Transfer
) of each Credit Agreement, the Delegate and/or the Collateral Agent shall, at the request and cost of the Company, execute all such documents and do all such other things as may be required to release the Security, in each
case without recourse to or any representation or warranty by or from the Collateral Agent and/or the Delegate (as applicable).
14
All payments
by the Company under this Assignment shall be made without any deductions and free and clear of, and without deduction for or on account of, tax except, in the latter case, to the extent that the Company is required by law to make payment subject to
tax. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Company, or paid or payable by the Delegate to any Secured Creditor, under this Assignment, the Company
shall pay such additional amounts as may be necessary to ensure that the relevant Secured Creditor receives a net amount equal to the full amount which it would have received had payment not been made subject to tax.
|
15.2
|
Payments without Set-off
|
Any payment made by the Company under this Assignment shall be made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
Each
payment made by the Company under this Assignment shall be paid in the manner in which payments are to be made by the Company under each Credit Agreement.
No
failure by the Delegate to exercise, nor any delay by the Delegate in exercising, any right or remedy under this Assignment shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy prevent any further or
other exercise thereof or the exercise of any other such right or remedy.
|
17.
|
ADDITIONAL PROVISIONS
|
If at
any time any provision of this Assignment is or becomes illegal, invalid or unenforceable in any respect or any of the Security is or becomes ineffective in any respect under the law of any jurisdiction, such illegality, invalidity, unenforceability
or ineffectiveness shall not affect:
|
|
(a)
|
the legality, validity or enforceability of the remaining provisions of this Assignment or the effectiveness in any other respect of the Security under such law; or
|
|
|
(b)
|
the legality, validity or enforceability of such provision or the effectiveness of the Security under the law of any other jurisdiction.
|
|
17.2
|
Potentially Avoided Payments
|
If the Delegate determines that an amount paid to a Secured Creditor under any Credit Document is being avoided or otherwise set aside on the liquidation or administration of the person by whom such
amount was paid, then for the purposes of this Assignment, such amount shall be regarded as not having been paid.
15
If
necessary to apply any sum held or received by the Delegate in or towards payment of the Secured Obligations, the Delegate may purchase an amount in another currency and the rate of exchange to be applied shall be that at which, at such time as it
considers appropriate, the Delegate is able to effect such purchase.
If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Company hereunder in the currency expressed to be payable herein (the “
specified currency
”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Delegate could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligations of the Company in respect of any sum due to the Delegate hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by the Delegate of any sum adjudged to be so due in such other currency the Delegate may in accordance with normal banking procedures purchase the specified currency with such other currency;
if the amount of the specified currency so purchased is less than the sum originally due to the Delegate in the specified currency, the Company agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify the Delegate against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to the Delegate in the specified currency, the Delegate agrees to remit such excess to the
Company.
The
rights and remedies provided by this Assignment are cumulative and not exclusive of any rights or remedies provided by law.
|
17.6
|
Delegate in Possession
|
The Delegate shall not by reason of its taking any action permitted by this Assignment or its taking possession of all or any of the
Assigned Rights be liable to account as mortgagee in possession or, other than as expressly stated in each Security Trust Deed, be liable for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
|
18.1
|
The Company’s Rights
|
The rights of the Company under this Assignment are not assignable or transferable and the Company agrees that it will not purport to
assign all or any such rights except as provided under the Breakaway Two Credit Facility and the Credit Agreements.
16
|
18.2
|
The Delegate’s Rights
|
|
|
(a)
|
The rights of the Delegate under this Assignment are assignable in whole or in part without the consent of the Company except as provided under the Credit Agreements.
|
|
|
(b)
|
The Delegate may not resign except with the prior consent of the Collateral Agent and otherwise, in accordance with the terms of the Security Trust Deeds.
|
|
19.1
|
Communications in Writing
|
Each communication to be made under this Assignment shall be made in writing and, unless otherwise stated, may be made by fax, electronic
mail or letter.
For the
purposes of any notice, request, demand or any communication sent in accordance with Clause 19.1 (
Communications in writing
) the contact details of each of the parties are as follows:
|
|
|
|
|
|
|
|
|
|
|
(a) to the Delegate:
|
|
|
|
|
|
|
|
|
|
Domstrasse 18
D - 20095 Hamburg
Germany
|
|
|
|
|
|
|
|
|
|
|
Attn.:
|
|
Marcus Weber / Anne Randewig
|
|
|
|
|
|
Telephone:
|
|
+49 40 3769 -9646 / -9647
|
|
|
|
|
|
Facsimile:
|
|
+49 40 3769 -9649
|
|
|
|
|
|
e-mail:
|
|
marcus.weber@commerzbank.com
anne.randewig@commerzbank.com
|
|
|
|
|
(b)
|
to the Collateral Agent:
|
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Attention: Ship Finance, X2a4, Claudia Wenzel
Fax: +49 69
7431 2944
E-mail: claudia.wenzel@kfw.de
7665 Corporation Center Drive
Miami, Florida 33126
USA
17
Attention: Chief Financial Officer and General Counsel
Fax: +1 305-436-4117
E-mail: dfarkas@ncl.com
hflanders@ncl.com
with copies to:
Apollo Management, L.P.
9 West 57
th
Street
New York, New York 10019
Attention: Steve Martinez
Fax: +1 212-515-3288
Email: martinez@apollolp.com
and
O’Melveny & Myers LLP
7 Times Square
New York, New York 10036
Attention: Brad J. Finkelstein
Fax: +1 212-326-2061
Email: bfinkelstein@omm.com
or to such other address and/or number as is notified in writing by a party to the other parties under this Assignment.
All
notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier or electronic (unless and until notified to the contrary) communication) and mailed, telexed, telecopied, delivered or electronic
mailed at the address specified in Clause 19.2 (
Contact Details
); provided that, with respect to all notices and other communication made by electronic mail or other electronic means, the Collateral Agent, the Delegate and the Company agree
that they (x) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means and (y) shall notify each other of any change to their
address or any other such information supplied by them. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when
sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Collateral Agent and the Delegate shall not be effective until received by the Collateral Agent or the Delegate (as applicable), or (iv) when electronic mailed, be effective only when
actually received in readable form and in the case of any electronic communication made by the Company to the Collateral Agent or the Delegate, only if it is addressed in such a manner as the Collateral Agent and/or the Delegate shall specify for
this purpose.
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(a)
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This Assignment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
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(b)
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The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Assignment (including a dispute relating to the
existence, validity or termination of this Assignment or any non-contractual obligation arising out of or in connection with this Assignment ) (a “
Dispute
”). The parties hereto agree that the courts of England are the most
appropriate and convenient courts to settle disputes and accordingly no party hereto will argue to the contrary. This Clause 20 is for the benefit of the Collateral Agent on behalf of Secured Creditors and the Delegate on behalf of Secured
Creditors. As a result, it shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Collateral Agent and the Delegate may take concurrent proceedings in any number
of jurisdictions.
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(c)
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Without prejudice to any other mode of service allowed under any relevant law, the Company: (i) irrevocably appoints EC3 Services Limited at 51 Eastcheap, London,
England, EC3M 1JP as its agent for service of process in relation to any proceedings before the English courts in connection with any credit document and (ii) agrees that failure by an agent for service of process to notify the relevant credit
party of the process will not invalidate the proceedings concerned. 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 Company must immediately (and in any event within
five days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent and the Delegate. Failing this, the Collateral Agent and/or the Delegate may appoint another agent for this purpose.
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(d)
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Each party to this Assignment expressly agrees and consents to the provisions of this Clause 20.
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21.
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COUNTERPARTS AND EFFECTIVENESS
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This
Assignment may be executed in counterparts and such counterparts taken together shall constitute one and the same instrument.
This
Assignment shall take effect and be delivered as a deed on the date on which it is stated to be made.
IN WITNESS WHEREOF
this
Assignment has been executed as a deed by the Company, the Collateral Agent and the Delegate.
19
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
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To: KfW IPEX-Bank GmbH as Refund Guarantor
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Palmengartenstrasse
5-9
60325
Frankfurt am Main
Germany
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Attention: [
—
]
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Cc: KfW IPEX-Bank GmbH as Collateral Agent
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Palmengartenstrasse
5-9
60325
Frankfurt am Main
Germany
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Attention: Ship Finance, X2a4,
Claudia Wenzel
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Fax: +49 69 7431
2944
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E-mail:
claudia.wenzel@kfw.de
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Cc: Deutsche Schiffsbank Aktiengesellschaft as
Delegate
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Domstrasse 18
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D - 20095 Hamburg
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Germany
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Attn.:
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Marcus Weber / Anne Randewig
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Telephone:
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+49 40 3769 -9646 / -9647
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Facsimile:
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+49 40 3769 -9649
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e-mail:
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marcus.weber@commerzbank.com
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anne.randewig@commerzbank.com
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Date: [
—
]
Dear Sirs
We hereby give you notice that
pursuant to an assignment agreement dated [
—
] (the “
Assignment
”) and made between Breakaway Two, Ltd. (the “
Company
”), KfW IPEX-Bank GmbH as Collateral Agent and [
—
] as delegate (the “
Delegate
”), the Company has assigned to the Delegate a second priority assignment of all of its rights, title, interests and benefits in, to or in respect of the
refund guarantee dated [
—
] and issued by you as refund guarantor in favour of the Company pursuant to which you guarantee certain refund obligations of Meyer Werft GmbH, as shipbuilder under
the Construction Contract (as defined in the Assignment) (the “
Refund Guarantee
”), including all monies which may be payable under or in respect of the Refund Guarantee.
20
With effect from your receipt of this notice we hereby give you notice that:
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(a)
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all payments to be made to the Company under or arising from the Refund Guarantee should be made to the Delegate or to its order as it may specify in writing from time
to time;
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(b)
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following an Event of Default (as defined in (i) the €126,075,000 delayed-draw term loan facility, dated
[
—
], among
inter alia
, Pride of Hawaii, LLC, as borrower, NCL Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH
as facility agent and the Collateral Agent and (ii) the €126,075,000 delayed-draw term loan facility, dated [
—
], among
inter alia
, Norwegian Jewel Limited, as borrower, NCL
Corporation Ltd., the lenders from time to time party thereto, the Joint Lead Arrangers (as defined therein), KfW IPEX-Bank GmbH as facility agent and the Collateral Agent (together the “
Credit Agreements
”)), written notice of which
Event of Default has been delivered to you by the Delegate, all remedies of the Company provided for in the Refund Guarantee or available at law or in equity shall be exercisable by the Delegate;
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(c)
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following an Event of Default, all rights of the Company to compel performance of the Refund Guarantee shall be exercisable by the Delegate;
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(d)
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all rights, title, interests and benefits whatsoever accruing to or for the benefit of the Company arising from the Refund Guarantee are assigned to the Delegate and
are subject to the provisions of the Intercreditor Agreement (as defined in the Assignment referenced above);
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(e)
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the Company has agreed not to agree to any waiver or amendment of or supplement to the terms of the Refund Guarantee other than where the prior written consent is given
by the Joint Lead Arrangers (not to be unreasonably withheld) to such waiver, amendment or supplement;
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(f)
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the Company has agreed not to terminate, or allow to be terminated, any Refund Guarantee other than where a replacement Refund Guarantee is issued to the Company which
meets the Company’s requirements under the Construction Contract on or prior to such termination or where the prior written consent is given by each of the Facility Agents (as defined in each Credit Agreement) to such termination;
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(g)
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the Delegate has agreed that the Company may exercise all of its rights and powers under and in respect of the Refund Guarantee except that to the extent that the
Delegate notifies you in writing that an Event of Default (as referred to in the Assignment) has occurred. Upon giving such notice, the Delegate may exercise such rights and powers (to the exclusion of the Company) (including, without limitation,
making a demand under the Refund Guarantee) to the extent stated in that notice and without you being under any duty to verify or make any enquiry as to whether such (or any) Event of Default has occurred;
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(h)
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the Company has irrevocably appointed the Delegate to be its attorney, upon the occurrence of and during the continuance of an Event of Default, to do (amongst other
things) things which the Company could do in relation to the Refund Guarantee. Accordingly, the Company authorises and instructs you to comply with the terms of any written notice or instructions which you may receive from the Delegate from time to
time in connection with the Refund Guarantee without further authority or enquiry by you from the Company; and
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(i)
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the Company remains liable to perform all its duties and obligations under the Refund Guarantee and the Delegate is under no obligation of any kind under the Refund
Guarantee nor under any liability whatsoever in the event of any failure by the Company to perform its obligations.
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You are
hereby authorised and instructed, without requiring further approval from the Company, to provide the Delegate with such information relating to the Refund Guarantee as it may from time to time reasonably request and to send copies of all notices
issued by you under the Refund Guarantee which have had or would reasonably be expected to have a material adverse effect on the value of the Refund Guarantee, to the Delegate as well as to the Company.
This notice of assignment shall terminate, and be of no further force and effect, upon termination of the Assignment (as notified to you by the
Delegate).
Please acknowledge receipt of this notice by signing and dating the acknowledgment set out on the enclosed copy and returning it
to the Delegate.
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Yours faithfully
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For and on behalf of
BREAKAWAY TWO, LTD.
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22
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF ASSIGNMENT
[
To be printed only on copy of the Notice of
Assignment given
]
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To: Deutsche Schiffsbank Aktiengesellschaft as
Delegate
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Domstrasse 18
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D - 20095 Hamburg
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Germany
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Attn.:
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Marcus Weber / Anne Randewig
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Telephone:
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+49 40 3769 -9646 / -9647
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Facsimile:
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+49 40 3769 -9649
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e-mail:
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marcus.weber@commerzbank.com
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anne.randewig@commerzbank.com
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Cc: KfW IPEX-Bank GmbH as Collateral Agent
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Palmengartenstrasse
5-9
60325
Frankfurt am Main
Germany
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Attention: Ship Finance, X2a4,
Claudia Wenzel
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Fax: +49 69 7431
2944
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E-mail:
claudia.wenzel@kfw.de
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Date: [
—
]
Dear Sirs
We acknowledge receipt of a notice
in the terms set out above (the “
Notice
”). We accept the instructions and authorisations contained in the Notice, we undertake to act in accordance with and comply with the terms of the Notice and we confirm that (other than in
respect of senior liens held by the Delegate as security trustee on behalf of certain “ECF creditors” in respect of the Refund Guarantee) we have not received notice of any other assignments or charges of or over any of the rights, title,
interests and benefits in, to or in respect of the Refund Guarantee and that we will comply with the terms of the Notice.
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We further agree and confirm that we acknowledge that we shall not challenge the effectiveness of the
Assignment (as defined in the Notice; capitalized terms used herein have the meanings ascribed thereto in the Notice or the Assignment, as applicable).
Yours faithfully
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For and on behalf of
KfW IPEX-Bank GmbH
as Refund Guarantor
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By:
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Date:
24
SCHEDULE 3
DETAILS OF REFUND GUARANTEES
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[Name of Issuer]
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[Date of Refund Guarantee]
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25
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SIGNATORIES
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Signed as a deed on behalf of
BREAKAWAY TWO, LTD,
a
company incorporated in Bermuda, by [
full name(s) of
person(s) signing
], being [a] person[s] who,
in accordance with
the laws of that territory, [is][are] acting under the authority of
the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
DEUTSCHE SCHIFFSBANK
AKTIENGESELLSCHAFT
, a company incorporated in
Germany, by [
full name(s) of person(s) signing
], being
[a]
person[s] who, in accordance with the laws of that territory,
[is][are] acting under the authority of the company
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Authorised [signatory] [signatories]
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Signed as a deed on behalf of
KFW IPEX-BANK GMBH
, a
company incorporated in Germany, by [
full name(s) of
person(s) signing
], being [a] person[s] who,
in accordance with
the laws of that territory, [is][are] acting under the authority of
the company
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Authorised [signatory] [signatories]
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26
