[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 17 June 2021
LEONARDO ONE, LTD.
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
NCL INTERNATIONAL, LTD.
as Shareholder
and
NORWEGIAN CRUISE LINE HOLDINGS LTD.
as the Holding
and
THE Banks and FINANCIAL INSTITUTIONS listed IN Schedule 1
as Lenders
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
BNP PARIBAS FORTIS S.A./N.V.
HSBC BANK PLC
KFW IPEX-BANK GMBH
CASSA DEPOSITI E PRESTITI S.P.A.
as Joint Mandated Lead Arrangers
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Security Trustee
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a facility agreement originally dated 12 April 2017
(as amended and restated by an amendment and restatement agreement dated 21 November 2017, as amended by a supplemental agreement dated 4 June 2020 and as amended and restated by an amendment and restatement agreement dated 17 February 2021)
in respect of the part financing of the 3,300 passenger cruise ship newbuilding
presently designated as Hull No. [*] at Fincantieri S.p.A
Index
ClausePage
1 Definitions and Interpretation2
2 Conditions Precedent and Conditions Subsequent4
4 Amendment and Restatement of Facility Agreement and other Finance Documents5
Schedules
Part A The Tranche A Lenders8
Part B The Tranche B Lenders10
Part C The Tranche C Lenders12
Schedule 2 Conditions Precedent14
Schedule 3 Conditions Subsequent16
Schedule 4 Form of Effective Date Certificate17
Execution
Appendices
Form of Amended and Restated Facility Agreement (marked to indicate amendments)
THIS AGREEMENT is made on 17 June 2021
| (1) | LEONARDO ONE, LTD., an exempted company incorporated under the laws of Bermuda whose registered office is at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda as borrower (the "Borrower") |
| (2) | NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda (the "Guarantor") |
| (3) | NCL INTERNATIONAL, LTD., a company incorporated under the laws of Bermuda and having its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda (the "Shareholder") |
| (4) | NORWEGIAN CRUISE LINE HOLDINGS LTD., a company incorporated under the laws of Bermuda with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda (the "Holding") |
| (5) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders (the "Lenders") |
| (6) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, BNP PARIBAS FORTIS S.A./N.V. of 3, Montagne du Parc, 1 KA1E, 1000 Brussels, Belgium, HSBC BANK PLC of Level 2, 8 Canada Square, London, E14 5HQ, United Kingdom, KFW IPEX-BANK GMBH of Palmengartenstraße, 5-9 60325, Frankfurt, Germany and CASSA DEPOSITI E PRESTITI S.P.A. of Via Goito, 4 – 00185, Roma, Italy as mandated lead arrangers (the "Mandated Lead Arrangers") |
| (7) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent" and the "SACE Agent") |
| (8) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security Trustee") |
| (B) | Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector and cruise operators, the Original Facility Agreement was amended pursuant to an |
| 1 | Definitions and Interpretation |
| 1.1 | Definitions |
In this Agreement:
2
| (b) | the improvements, changes and modifications agreed between the Borrower (as Owner under the Shipbuilding Contract) and the Builder, pursuant to article 9.2 of the Shipbuilding Contract. |
| 1.2 | Defined expressions |
Defined expressions in the Facility Agreement and, with effect from the Effective Date, the Amended and Restated Facility Agreement, shall have the same meanings when used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
| 1.3 | Application of construction and interpretation provisions of Facility Agreement |
Clause 1.2 (Construction of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
| 1.4 | Designation as a Finance Document |
The Borrower and the Agent designate this Agreement as a Finance Document.
3
| 1.5 | Third party rights |
| (b) | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party (other than SACE and SIMEST) is not required to rescind or vary this Agreement at any time. |
| 2 | Conditions Precedent and Conditions Subsequent |
| 2.1 | The Effective Date cannot occur unless: |
| (b) | save as disclosed in writing to the Agent and SACE prior to the date of this Agreement, the representations and warranties contained in Clause 3 (Representations) are true and correct on, and as of, each such time as if each was made with respect to the facts and circumstances existing at such time; |
| (d) | the Agent is satisfied that the Effective Date can occur and has not provided any instructions to the contrary informing the Parties that the Effective Date cannot occur. |
4
| 2.4 | Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent provides the certificate described in Clause 2.3 above, the Creditor Parties authorise (but do not require) the Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such certificate. |
| 3 | Representations |
| 3.1 | Facility Agreement representations |
On the date of this Agreement and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties as set out in clause 11 (Representations and warranties) of the Facility Agreement, as amended and restated by this Agreement and updated with appropriate modifications to refer to this Agreement and (where relevant) the Amended and Restated Facility Agreement, by reference to the circumstances then existing.
| 3.2 | Finance Document representations |
On the date of this Agreement and on the Effective Date, each Obligor (save for the Holding) makes the representations and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and restated and/or supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing.
| 4 | Amendment and Restatement of Facility Agreement and other Finance Documents |
| 4.1 | Specific amendments to the Facility Agreement |
With effect on and from the Effective Date, the Facility Agreement shall be amended and restated in the form of the Amended and Restated Facility Agreement and, as so amended and restated, the Facility Agreement shall continue to be binding on each of the parties to it in accordance with its terms as so amended and restated.
| 4.2 | Confirmation of Guarantee |
With effect on and from the Effective Date the Guarantor confirms that:
| (a) | the Guarantee extends to the obligations of the Borrower under the Finance Documents as amended, restated and/or supplemented by this Agreement; |
| (b) | the obligations of the relevant Obligors under the Finance Documents as amended, restated and/or supplemented by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and |
| 4.3 | Security Confirmation |
5
| (b) | the obligations of the relevant Obligors under the Finance Documents as amended, restated and/or supplemented by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party); |
| (c) | the Security Interests created under the Finance Documents continue in full force and effect on the terms of the respective Finance Documents; and |
| (d) | to the extent that this confirmation creates a new Security Interest, such Security Interest shall be on the terms of the Finance Documents in respect of which this confirmation is given. |
| 4.4 | Finance Documents to remain in full force and effect |
The Finance Documents shall remain in full force and effect and, from the Effective Date:
| (a) | in the case of the Facility Agreement as amended and restated pursuant to Clause 4.1 (Specific amendments to the Facility Agreement); |
| (b) | the Facility Agreement and the applicable provisions of this Agreement will be read and construed as one document; and |
| 5 | Further Assurance |
Clause 12.20 (Further assurance) of the Facility Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
| 6 | Costs, Expenses and Fees |
| 6.2 | The Borrower shall pay to each of (i) the Agent for its own account and (ii) the Agent (for the account of each Lender) such fees in the amount and at the times specified in the relevant June 2021 Fee Letters. |
| 7 | Notices |
Clause 32 (Notices) of the Facility Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
6
| 8 | Counterparts |
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.
| 9 | Signing Electronically |
The Parties acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties' intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
| 10 | Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
| 11 | Enforcement |
| 11.1 | Jurisdiction |
| (a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute"). |
| (b) | The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary. |
| 11.2 | Service of process |
| (a) | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): |
| (ii) | agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
| (b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
7
Leonardo One
Amendment and Restatement Agreement
BORROWER
SIGNED by) /s/ Daniel S. Farkas
duly authorised) Daniel Farkas
for and on behalf of)
LEONARDO ONE, LTD. )
GUARANTOR
SIGNED by) /s/ Daniel S. Farkas
duly authorised) Daniel Farkas
for and on behalf of)
NCL CORPORATION LTD. )
SHAREHOLDER
SIGNED by) /s/ Daniel S. Farkas
for and on behalf of) Daniel Farkas
NCL INTERNATIONAL, LTD.)
as its duly appointed attorney-in-fact)
in the presence of:) /s/ Jared G. Silberhorn
) Jared G. Silberhorn
)7665 Corporate Center Drive
)Miami, FL 33126 USA
HOLDING
SIGNED by) /s/ Daniel S. Farkas
for and on behalf of) Daniel Farkas
NORWEGIAN CRUISE LINE)
HOLDINGS LTD.)
as its duly appointed attorney-in-fact)
in the presence of:) /s/ Jared G. Silberhorn
) Jared G. Silberhorn
) 7665 Corporate Center Drive
) Miami, FL 33126 USA
Leonardo One
Amendment and Restatement Agreement
LENDERS
SIGNED by ) /s/ Cosmo Fisher
duly authorised ) Cosmo Fisher
for and on behalf of) Attorney-in-Fact
AND INVESTMENT BANK )
SIGNED by ) /s/ Bruno Cloquet
duly authorised ) Bruno Cloquet
for and on behalf of)Global Head of Exporters and ECAs Originations
BNP PARIBAS FORTIS S.A./N.V )
)/s/ Michel Froidebise
) Michel Froidebise
)Head of Export Finance Nordic Origination
SIGNED by ) /s/ Maria Gazi
duly authorised ) Maria Gazi
for and on behalf of) Attorney-in-Fact
KFW IPEX-BANK GMBH)
SIGNED by ) /s/ Alessandro Mazzi
duly authorised ) Alessandro Mazzi
for and on behalf of) MD — Head of Export and Asset Finance, Italy
HSBC CONTINENTAL EUROPE, ITALY)
SIGNED by ) /s/ Enrico Semprebene
duly authorised ) Enrico Semprebene
for and on behalf of)
CASSA DEPOSITI E PRESTITI S.P.A.)
MANDATED LEAD ARRANGERS
SIGNED by ) /s/ Cosmo Fisher
duly authorised) Cosmo Fisher
for and on behalf of) Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE)
AND INVESTMENT BANK )
SIGNED by ) /s/ Bruno Cloquet
duly authorised ) Bruno Cloquet
for and on behalf of)Global Head of Exporters and ECAs Origination
BNP PARIBAS FORTIS S.A./N.V )
)/s/ Michel Froidebise
) Michel Froidebise
) Head of Export Finance Nordic Origination
Leonardo One
Amendment and Restatement Agreement
SIGNED by ) /s/ Varsha Sharan
duly authorised ) Varsha Sharan
for and on behalf of) Director
HSBC BANK PLC)
SIGNED by ) /s/ Maria Gazi
duly authorised ) Maria Gazi
for and on behalf of) Attorney-in-Fact
KFW IPEX-BANK GMBH)
SIGNED by ) /s/ Enrico Semprebene
duly authorised ) Enrico Semprebene
for and on behalf of)
CASSA DEPOSITI E PRESTITI S.P.A.)
AGENT
SIGNED by ) /s/ Cosmo Fisher
duly authorised ) Cosmo Fisher
for and on behalf of) Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK )
SACE AGENT
SIGNED by ) /s/ Cosmo Fisher
duly authorised ) Cosmo Fisher
for and on behalf of) Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK )
SECURITY TRUSTEE
SIGNED by ) /s/ Cosmo Fisher
duly authorised ) Cosmo Fisher
for and on behalf of) Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK )
APPENDIX
Form of Amended and Restated Facility Agreement (marked to indicate amendments)
Amendments are indicated as follows:
| 1 | additions are indicated by underlined text in blue; and |
| 2 | deletions are shown by strike-through text in red. |
11
Originally dated 12 April 2017
(as amended and restated by an amendment and restatement agreement dated 21 November 2017, as amended by a supplemental agreement dated 4 June 2020, as amended and restated by an amendment and restatement agreement dated 17 February 2021 and as further amended and restated pursuant toby an amendment and restatement agreement dated _____ February_______________ 2021)
Term Loan Facility
LEONARDO ONE, LTD.
as Borrower
and
The Banks and Financial Institutions
listed in Schedule 1
as Lenders
and
Crédit Agricole Corporate and Investment Bank
BNP PARIBAS Fortis S.A./N.V.
KFW IPEX-BANK GMBH
HSBC Bank PLC
CASSA DEPOSITI E PRESTITI S.P.A.
as Joint Mandated Lead Arrangers
and
Crédit Agricole Corporate and Investment Bank
as Agent and SACE Agent
and
Crédit Agricole Corporate and Investment Bank
as Security Trustee
with the support of
SACE S.p.A.
AMENDED AND RESTATED Facility Agreement
relating to the part financing of the 3,300 passenger cruise ship
newbuilding presently designated as
Hull No. [*] at Fincantieri S.p.A.
Index
ClausePage
1Interpretation4
2Facility3336
3Conditions Precedent3539
4Drawdown4550
5Repayment4855
6Interest4855
7Interest Periods5360
8SACE Premium and Italian Authorities5461
9Fees5767
10Taxes, Increased Costs, Costs and Related Charges5868
11Representations and Warranties6575
12General Undertakings7181
13Ship Undertakings8393
14Insurance Undertakings90100
15Security Value Maintenance93103
16Cancellation, Prepayment and Mandatory Prepayment95104
17Interest on Late Payments98108
18Events of Default98108
19Application of sums received104114
20Indemnities104114
21Illegality, etc.107117
22Set-Off108118
23Bail-In109119
24Changes to the Lenders109120
25Changes to the Obligors115125
26Role of the Agent and the Joint Mandated Lead Arrangers115125
27The Security Trustee121131
28Conduct of business by the Creditor Parties132143
29Sharing among the Creditor Parties132143
30Payment Mechanics134144
31Variations and Waivers136146
32Notices137148
33Confidentiality139150
34Legal independence and Unconditional Obligations of the Borrower143154
35SACE Subrogation and Reimbursement144154
36Supplemental146156
37Governing Law147157
38Enforcement147158
39Confidentiality of Funding Rates and Reference Bank Quotations148158
Schedules
Schedule 1 Lenders and Commitments150161
Part A The Tranche A Lenders 161
Part B The Tranche B Lenders 163
Part C The Tranche C Lenders 165
Schedule 2 Form of Drawdown Notice151167
EUROPE/67815195v7
Schedule 3 Documents to be produced by the Builder to the Agent on Delivery153170
Schedule 4 Form of Transfer Certificate154171
Schedule 5 Qualifying Certificate158175
Schedule 6 Drawdown ScheduleSchedules160177
Part A Drawdown Schedule – Tranche A 177
Part B Drawdown Schedule – Tranche B 178
Execution
Execution Pages161179
EUROPE/67815195v7
THIS AGREEMENT is originally made on 12 April 2017 (as amended and restated by an amendment and restatement agreement dated 21 November 2017, as amended by a supplemental agreement dated 4 June 2020, as amended and restated by an amendment and restatement dated 17 February 2021 and as further amended and restated pursuant toby an amendment and restatement agreement dated _____ February_______________ 2021)
|
(1) |
LEONARDO ONE, LTD., an exempted company incorporated under the laws of Bermuda whose registered office is at Park Place 55, Par-la-Ville Road, Hamilton HM 11, Bermuda as borrower (the "Borrower") |
|
(2) |
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders (the "Lenders") |
|
(5) |
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, acting though its office at 12 Place des États-Unis, CS 70052, 92547, Montrouge Cedex, France, as security trustee (the "Security Trustee") |
|
(B) |
The total price payable by the Borrower to the Builder under the Shipbuilding Contract is eight hundred million Euros (€800,000,000) (the "Initial Contract Price") payable on the following terms: |
|
(ii) |
as to [*], being [*], on the later of the date of commencement of steel cutting and the date falling 24 months prior to the Intended Delivery Date; |
|
(iii) |
as to [*], being [*], on the later of keel laying in dry-dock and the date falling 18 months prior to the Intended Delivery Date; |
|
(iv) |
as to [*], being [*], on the later of launching and the date falling 12 months prior to the Intended Delivery Date; and |
|
(v) |
as to [*], being [*], on delivery of the Ship on the Delivery Date, |
as each such event is described in the Shipbuilding Contract.
|
(E) |
It is a condition precedent: |
|
(i) |
under the Original Shipbuilding Contract that each instalment of the price payable under the Original Shipbuilding Contract (save for the delivery instalment) be covered by a Refund Guarantee issued by a Refund Guarantor; and |
|
(i) |
the Acceptable Deposit be held in an account opened by the Borrower with the Account Bank which shall be pledged in favour of the Lenders, the Joint Mandated Lead Arrangers, the Agent, the SACE Agent and the Security Trustee; and |
|
(ii) |
the next instalment under the Shipbuilding Contract is covered by a Refund Guarantee. |
2
|
(I) |
Pursuant to the consent request letter dated 18 April 2020, the Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation to certain loan agreements listed therein, including the Original Facility Agreement (as amended and restated by the 2017 Amending and Restating Agreement), and requested, amongst other things, the temporary suspension of certain covenants under the Original Guarantee (as defined below) and the addition of certain covenants under the Original Facility Agreement (as amended and restated by the 2017 Amending and Restating Agreement) for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request"). |
3
(the Original Facility Agreement as amended and restated by the 2017 Amending and Restating Agreement, as amended by the 2020 Amendment Agreement and as amended and restated by the February 2021 Amendment and Restatement Agreement, the "Facility Agreement").
|
This Agreement sets out the terms and conditions of the Facility Agreement as amended and restated by the June 2021 Amendment and Restatement Agreement. |
|
1 |
|
1.1 |
Subject to Clause 1.6 (General Interpretation), in this Agreement:
"2017 Amending and Restating Agreement" has the meaning given to such term in Recital G.
"2020 Amendment Agreement" has the meaning given to such term in Recital J.
"2020 Deferral Effective Date" has the meaning given to the term Effective Date in the 2020 Amendment Agreement.
"2020 Deferral Fee Letters" means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the 2020 Amendment Agreement.
"2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital M.
"2021 Deferral Effective Date" has the meaning given to the term Effective Date in the February 2021 Amendment and Restatement Agreement.
"2021 Deferral Fee Letters" means any letter between the Agent or the SACE Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the February 2021 Amendment and Restatement Agreement.
"Acceptable Deposit" means a cash deposit for an amount equal to the cumulative total of the principal and interest secured by the relevant Refund Guarantee which is to be paid by the
4
Builder (a) for security purposes in favour of the Borrower and under its control, the Builder agreeing that it shall not have any control rights in respect of the deposit, that the Borrower may freely assign, charge, pledge or otherwise convey its rights in relation to the deposit to its financiers and SACE without the need to seek or obtain any approval or consent from the Builder, and that the Borrower shall be entitled to claim payment of the deposit in the same circumstances that it could claim payment of a Refund Guarantee, and (b) to the Account Bank by or before the relevant due date for payment of the deposit in accordance with Article 10.3 of the Shipbuilding Contract.
"Account" means a Euro account of the Borrower opened or to be opened with the Account Bank and subject to an Account Pledge.
"Account Bank" means Crédit Agricole Corporate and Investment Bank, being pursuant to the terms of the Shipbuilding Contract, the legal person designated by written notice by the Borrower to the Builder at any time to hold an Acceptable Deposit.
"Account Pledge" means any pledge of an Acceptable Deposit granted in favour of the Security Trustee, the Joint Mandated Lead Arrangers, the Agent, the SACE Agent and the Lenders.
"Additional SACE Premium" has the meaning given to such term in Clause 8.5 (Additional Premium).
"Advance" means the principal amount of each borrowing of all or part of a Tranche by the Borrower under this Agreement.
"Affiliate" means in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
"Agent" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of seven billion eight hundred and fifty one million six hundred and thirty six thousand three hundred and forty two Euros (€7,851,636,342.00) and its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, registered under the n° Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre or any successor of it appointed under Clause 26 (Role of the Agent and the Joint Mandated Lead Arrangers).
"Aggregate SACE Premium" means, together, the SACE Premium, the Additional SACE Premium and the Tranche B Premium.
"Amended Maximum Loan Amount" means the aggregate of:
|
the Original Maximum Loan Amount, financed or to be financed pursuant to Tranche A, provided that such amount shall not, at any time, exceed the Total Tranche A Commitments; |
|
the Dollar Equivalent of Euros one hundred eighty-five million six hundred thousand (€185,600.000), corresponding to the amount to be financed in relation to the Upsize Allowance, financed or to be financed pursuant to Tranche B; |
5
|
100% of the Tranche B Premium to be paid in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium), |
provided that such amount shall not, at any time, exceed the Total Tranche B Commitments; and
provided that such aggregate amount shall not, at any time, exceed the Total Commitments.
"Annex VI" means Annex VI (Regulations for the Prevention of Air Pollution from Ships, entered into on 19 May, 2005) to the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (MARPOL) and as further revised in October 2008 with such revised version having entered into force on 1 July 2010.
"Approved Broker" means Clarkson Platou, Barry Rogliano Salles, Fearnleys AS, Rocca & Partners, Brax Shipbrokers AS (or any Affiliate of such person through which valuations are commonly issued) or such other shipbroker or ship valuer experienced in valuing cruise ships nominated by the Borrower and approved by the Agent.
"Approved Flag" means the Bermudian flag, the Marshall Islands flag, the Bahamas flag or such other flag as the Agent may, with the approval of the Italian Authorities and at least three Lenders representing as a minimum the Majority Lenders, approve from time to time.
"Approved Manager" means any of the Borrower, NCL Corporation Ltd., NCL (Bahamas) Ltd. or other member of the Group, or any company which is not a member of the Group which the Agent may, with the authorisation of the Majority Lenders, approve from time to time as the manager of the Ship.
"Approved Manager's Undertaking" means, in the event that the Approved Manager is a company other than the Borrower, a letter of undertaking executed or to be executed by the Approved Manager in favour of the Agent, which will include, without limitation, an agreement by the Approved Manager to subordinate its rights against the Ship and the Borrower to the rights of the Secured Parties under the Finance Documents, in the agreed form.
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Availability Period" means, in relation to Tranche A, the period commencing on the date of the Original Facility Agreement and, in relation to Tranche B and Tranche C, the period commencing on the date of this Agreement, and ending on:
|
(a) |
the earlier to occur of (i) the Delivery Date and (ii) 25 February 2023 (or such later date as the Agent may, with the authorisation of the Lenders, agree with the Borrower); or |
|
(b) |
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated. |
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
6
"Bail-In Legislation" means:
|
(b) |
in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. |
"Base Rate" means one Euro for [*] Dollars.
"Bermudian Obligors" means the Borrower, the Shareholder and the Guarantor.
"Builder" has the meaning given in Recital (A).
|
(a) |
for the purposes of Recital (B) above, a day (other than a Saturday or a Sunday) on which banks are open in Paris, New York, Milan and Rome; and |
|
(b) |
for the purposes of any other provision in this Agreement, a day (other than a Saturday or a Sunday) on which banks are open in London, Frankfurt, Rome, Brussels and Paris and, in relation to any payment to be made to the Builder, Milan and, in respect of a day on which a payment is required to be made under a Finance Document, also in New York City. |
"CDP" means Cassa Depositi e Prestiti S.p.A..
"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.
"Charged Property" means all of the assets which from time to time are, or are expressed to be, the subject of Security Interests pursuant to the Finance Documents.
"CIRR" (Commercial Interest Reference Rate) means two point fifty-three per cent. (2.53%) per annum or any other CIRR rate being the fixed rate for medium and long term export credits in Dollars applicable to the financing of the Ship according to the Organisation for Economic Co-operation and Development rules as determined by the competent Italian Authorities.
"Code" means the United States Internal Revenue Code of 1986.
"Code of Ethics" means the code of ethics adopted by CDP, available on CDP's website (http://www.cdp.it/static/upload/cdp/cdp_code_ethics.pdf).
"Commitment" means, in relation to a Lender, the percentage of the Maximum Loan Amount set opposite its name in Schedule 1 (Lenders and Commitments), or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and "Total Commitments" means
7
the aggregate of the Commitments of all the Lenders).a Tranche A Commitment, a Tranche B Commitment or a Tranche C Commitment.
"Compliance Certificate" has the meaning given to the term "Compliance Certificate" in the Guarantee.
"Confidential Information" means all information relating to any Obligor, the Group, the Finance Documents or the Loan of which a Secured Party becomes aware in its capacity as, or for the purpose of becoming, a Secured Party or which is received by a Secured Party in relation to, or for the purpose of becoming a Secured Party under, the Finance Documents or the Loan from either:
|
(a) |
|
(b) |
another Secured Party, if the information was obtained by that Secured Party directly or indirectly from any member of the Group or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Secured Party of Clause 33 (Confidentiality); or |
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
"Confidentiality Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to time or in any other form agreed between the Borrower and the Agent.
"Contribution" means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"Conversion Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date and notified to the Borrower as being the lower of:
|
(a) |
|
(b) |
"Conversion Rate Fixing Date" means:
|
(a) |
in respect of each Advance under a Tranche save for the Delivery Advance under that Tranche, the date falling [*] days before the relevant Drawdown Date under that Tranche; and |
8
|
(b) |
in respect of the Delivery Advance under a Tranche, the date falling [*] days before the Delivery Date. |
"Corresponding Debt" means any amount, other than any Parallel Debt, which an Obligor owes to a Creditor Party under or in connection with the Finance Documents.
"Creditor Party" means the Agent, the Security Trustee, the SACE Agent, the Joint Mandated Lead Arrangers or any Lender, whether as at the date of the Original Facility Agreement or at any later time.
"Deferral Fee Letters" means any of the 2020 Deferral Fee Letters and/or the 2021 Deferral Fee Letters.
"Deferral Period" means the period from 1 April 2020 to 31 December 2022.
"Delivery Advance" means, subject to the provisions of Clause 8.4 (Refund) and paragraphs (e) and (f) of Clause 8.6 (Tranche B Premium), the Advance under a Tranche to be made available (as applicable) for drawing on the Delivery Date.
"Delivery Date" means the date and time of delivery of the Ship by the Builder to the Borrower as stated in the Protocol of Delivery and Acceptance.
"Document of Compliance" has the meaning given to it in the ISM Code.
"Dollar Equivalent" means such amount in Dollars as is calculated by the Agent on the Conversion Rate Fixing Date to be the equivalent of an amount in Euro at the Conversion Rate.
"Dollars" and "$" means the lawful currency for the time being of the United States of America.
"Downgraded Refund Guarantor" means a Refund Guarantor who has become subject to a RG Downgrade Event.
"Drawdown Date" means, in relation to an Advance under a Tranche, the date on which that Advance is drawn down and applied in accordance with Clause 2 (Facility).
"Drawdown Notice" means a notice in the form set out in Schedule 2 (Form of Drawdown Notice) (or in any other form which the Agent approves or reasonably requires).
"Earnings" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower and which arise out of the use or operation of the Ship, including (but not limited to):
|
(b) |
all moneys which are at any time payable under Insurances in respect of loss of earnings; |
|
(c) |
all moneys which are at any time payable to the Borrower in respect of the general average contribution; and |
9
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Eligible Amount" means eighty per cent. (80%) of the lesser of:
|
(a) |
the Dollar Equivalent of eight hundred million Euros (€800,000,000); and |
|
(b) |
"Environmental Approval" means any present or future permit, ruling, variance or other authorisation required under Environmental Laws.
"Environmental Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
"Environmental Incident" means:
"Environmental Law" means any present or future law relating to pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.
10
"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"Equator Principles" means the standards entitled "A financial industry benchmark for determining, assessing and managing environmental and social risk in projects" dated June 2013 and adopted by certain financial institutions, as the same may be amended or supplemented from time to time.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Euro" and "EUR" means the single currency of the Participating Member States.
"Event of Default" means any of the events or circumstances described in Clause 18.1 (Events of Default).
"Existing Indebtedness" means Financial Indebtedness referred to in the financial statements of the Guarantor delivered to the Agent prior to the date of this Agreement.
"Exporter Declaration" means a declaration to be issued for Advances under Tranche A and Tranche B in respect of which interest is payable at the Fixed Interest Rate, in the form required by SIMEST at the relevant time duly signed by an authorised signatory of the Builder.
"Facility" means the term loan facility under Tranche A, Tranche B and Tranche C, made or to be made available under this Agreement as described in Clause 2.1 (Amount of facility).
"Facility Agreement" has the meaning given to such term in Recital (JM).
"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.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations; |
"FATCA Application Date" means:
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; |
11
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019, |
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of the Original Facility Agreement.
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"February 2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital (M).
"Fee Letter" means any letter dated on or about the date of the Original Facility Agreement between the SACE Agent and the Borrower setting out the fees referred to in paragraph (d) of Clause 9 (Fees).
|
(a) |
|
(b) |
the 2020 Amendment Agreement; |
|
(c) |
|
(d) |
the Deferral Fee LettersJune 2021 Amendment and Restatement Agreement; |
|
(e) |
this Agreement; |
|
(f) |
|
the Pre-delivery Security; |
12
|
any Subordinated Debt Security; |
|
any Compliance Certificate; |
|
any Drawdown Notice; |
|
any other document (whether creating a Security Interest or not) which is designated as a Finance Document by agreement between the Borrower, SACE and the Agent. |
"Final Contract Price" has the meaning given in Recital (C).
"Financial Indebtedness" means, in relation to a person (the "debtor"), a liability of the debtor:
|
(a) |
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; |
|
(b) |
under any loan stock, bond, note or other security issued by the debtor; |
|
(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor; |
|
(d) |
under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor; |
|
(g) |
arising from receivables sold or discounted (other than receivables to the extent they are sold on a non-recourse basis). |
"First Instalment" means the first instalment of the SACE Premium as more particularly described in paragraph (a) of Clause 8.1 (SACE Premium).
"Fixed Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of:
|
(a) |
13
|
(b) |
"Floating Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of:
|
(a) |
|
(b) |
"FOREX Contracts" means each actual purchase contract, spot or forward contract and any other contract, such as an option or collar arrangement, which is entered into in the foreign exchange markets for the acquisition of Euro intended to pay the instalments under the Shipbuilding Contract, which:
"FOREX Contracts Weighted Average Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date in accordance with the following principles which (inter alia) are intended to take into account any maturity mismatch between the maturity of the FOREX Contracts and each Drawdown Date as well as FOREX Contracts that are unwound as part of the hedging strategy of the Borrower:
|
(a) |
FOREX Contracts that are spot or forward foreign exchange contracts, if any, shall be valued at the contract value (taking into account any rescheduling); |
14
Any marked to market valuation, as required in paragraph (c) above, shall be performed by Crédit Agricole Corporate and Investment Bank's dedicated desk in accordance with market practices. The Borrower shall have the right to request indicative valuations from time to time prior to the Conversion Rate Fixing Date.
"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (ii) of paragraph (a) of Clause 6.9 (Cost of funds).
"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.
"General Assignment" means an assignment of any Management Agreement, the Earnings, the Insurances and any Requisition Compensation, executed or to be executed by the Borrower and, in the event that the Approved Manager is not a member of the Group and is named as a co-assured in the Insurances, the Approved Manager in favour of the Security Trustee in the agreed form.
"Gross Negligence" means any act or omission, whether deliberate or not, which in the circumstances (including both the probability and seriousness of the consequences likely to result) would reasonably be regarded by those familiar with the nature of the activity in question and with the surrounding circumstances, as amounting to the reckless disregard of, or serious indifference to, the consequences, being in any case more than a negligent failure to exercise proper skill and care.
"Group" means the Guarantor and its Subsidiaries.
"Guarantee" means the Original Guarantee, as amended pursuant to the 2020 Amendment Agreement and as amended and restated pursuant to the February 2021 Amendment and Restatement Agreement, and as may be further amended and/or supplemented from time to time.
"Guarantor" means NCL Corporation Ltd., a Bermuda company with its registered office at Park Place 55, Par-la-Ville Road, Hamilton HM 11, Bermuda.
"Holding" means Norwegian Cruise Line Holdings Ltd., a company incorporated under the laws of Bermuda with its registered office at Park Place 55, Par-la-Ville Road, Hamilton HM 11, Bermuda.
"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.
"IAPPC" means a valid international air pollution prevention certificate for the Ship issued under Annex VI.
"Illicit Origin" means any origin which is illicit, fraudulent or in breach of Sanctions including, without limitation, drug trafficking, corruption, organised criminal activities, terrorism, money laundering or fraud.
"Information Package" means:
15
"Initial Contract Price" has the meaning given in Recital (B).
|
(b) |
all rights and other assets relating to, or derived from any of such policies, contracts or entries, including any rights to a return of a premium. |
"Intended Delivery Date" means [*] (the date on which the Ship will be ready for delivery pursuant to the Shipbuilding Contract as at the date of the Original Facility Agreement) or any other date notified by the Borrower to the Agent in accordance with paragraph (a) of Clause 3.123.13 (No later than sixty (60) days before the Intended Delivery Date) or paragraph (b) of Clause 3.143.15 (No later than five (5) Business Days before the Intended Delivery Date) as being the date on which the Builder and the Borrower have agreed that the Ship will be ready for delivery pursuant to the Shipbuilding Contract.
"Interest Make-Up Agreement" means an interest make up agreement (Capitolato) to be entered into between SIMEST and the Agent on behalf of the Lenders and in form and substance acceptable to the Joint Mandated Lead Arrangers, whereby, inter alia, the return to the Lenders on the Loan made hereunder will be supplemented by SIMEST so that it equals that which the Lenders would have received if interest were payable on the Loan at LIBOR plus the Margin.
"Interest Period" means a period determined in accordance with Clause 7 (Interest Periods).
"Interpolated Screen Rate" means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and |
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan, |
each as of the Specified Time for Dollars.
16
"ISM Code" means the International Safety Management Code for the safe operation of ships and for pollution prevention (including the guidelines on its implementation), adopted by the International Maritime Organisation as the same may be amended or supplemented from time to time.
"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code adopted by the International Maritime Organisation (IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"Italian Authorities" means SACE and/or SIMEST and any other relevant Italian authorities involved in the implementation of the Loan.
"June 2021 Amendment and Restatement Agreement" has the meaning given to this term in Recital (O).
"June 2021 Fee Letters" means any letter between the Agent or the SACE Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the June 2021 Amendment and Restatement Agreement.
"Legislative Decree 231/01" means the Italian legislative decree of 8 June 2001, no. 231 (Disciplina della responsabilità amministrativa delle persone giurdiche, delle società e delle associazioni anche prive di personalità giuridica, a norma dell'articolo 11 della legge 29 settembre 2000, n.300) as amended from time to time, on administrative vicarious liability of corporate entities.
"Lender" means a bank, financial institution, trust, fund or other entity listed in Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.Tranche A Lender, a Tranche B Lender or a Tranche C Lender.
"LIBOR" means, in relation to the Loan or any part of the Loan:
|
(a) |
the applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or |
|
(b) |
as otherwise determined pursuant to Clause 6.6 (Unavailability of Screen Rate). |
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
"Loan" means the aggregate principal amount outstanding for the time being outstanding under this Agreementof the borrowings under the Facility and a "part of the Loan" means an Advance, a Tranche or a part of a Tranche.
"Majority Lenders" means:
|
(a) |
before the first Advance under Tranche A has been made, Lenders whose Commitments total [*] per cent. of the Total Commitments; and |
|
(b) |
after any Advance under any Tranche has been made, Lenders whose Contributions total [*] per cent. of the Loan. |
17
"Management Agreement" means the management agreement (if any) entered or to be entered into between the Borrower and an Approved Manager which is not a member of the Group with respect to the Ship on terms reasonably acceptable to the Majority Lenders and SACE.
|
(a) |
in relation to the Fixed Interest Rate zero point fifteen per cent. (0.15%) per annum; and |
|
(b) |
in relation to the Floating Interest Rate one point sixty-five per cent. (1.65%) per annum. |
"Maritime Registry" means the maritime registry which the Borrower will specify to the Lenders no later than 90 days before the Intended Delivery Date, being that of Bermuda, the Marshall Islands, Bahamas or such other registry as the Agent may, with the approval of the Italian Authorities and at least three Lenders representing as a minimum the Majority Lenders, approve.
"Material Adverse Effect" means the occurrence of any event or circumstance which reasonably would be expected to have a material adverse effect on:
|
(a) |
the business, operations, property, condition (financial or otherwise) of any Obligor or the Group as a whole; or |
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document and/or any Pre-delivery Contract; or |
"Material Provisions" means Article 1 (Subject of the Contract), Article 2 (Vessel's Classification – Rules and Regulations – Certificates), Article 8 (Delivery), Article 9 (Price), Article 13 (Speed – Liquidated Damages), Article 14 (Deadweight – Liquidated Damages), Article 17 (Fuel Oil Consumption – Liquidated Damages), Article 19 (Maximum Amount of Liquidated Damages), Article 20 (Termination of the Contract – Liquidated Damages to be paid by the Builder), Article 23 (Insurance), Article 25 (Guarantee – Liability), Article 26 (Permissible Delay), Article 29 (Assignment of the Contract), and Article 30 (Law of the Contract – Disputes) of the Shipbuilding Contract.
"Maximum Loan Amount" means the aggregate of:
|
the Dollar Equivalent of six hundred and forty million Euros (€640,000,000.00); and |
|
one hundred per cent. (100%) of the SACE Premium to be paid in accordance with Clause 8.1 (SACE Premium), |
provided that such amount shall not, at any time, exceed eight hundred and sixty-eight million, one hundred and eight thousand, one hundred and eight Dollars and eleven Cents ($868,108,108.11).
18
"Minor Modification" means a modification of the plans or the specification or the construction of the Ship under Article 24 of the Shipbuilding Contract, resulting in a contract price increase or decrease of less than [*] Euros (€[*]).
"Model" means the principles of the compliance system adopted by CDP pursuant to Legislative Decree 231/01, available on CDP's website (http://www.cdp.it/static/upload/pri/ principles-of-the-compliance-system.pdf).
"Mortgage" means the first priority mortgage on the Ship acceptable for registration on the Approved Flag and, if applicable, deed of covenant, executed or to be executed by the Borrower in favour of the Security Trustee in the agreed form.
"Obligors" means the Borrower, the Guarantor, the Shareholder and (in the event that the Approved Manager is a member of the Group) the Approved Manager.
"Original Facility Agreement" has the meaning given to such term in Recital (D).
"Original Guarantee" means the guarantee issued by the Guarantor in favour of the Security Trustee on 12 April 2017.
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement.
"Original Maximum Loan Amount" means the aggregate of:
|
the Dollar Equivalent of six hundred and forty million Euros (€640,000,000.00); and |
|
one hundred per cent. (100%) of the SACE Premium to be paid in accordance with Clause 8.1 (SACE Premium), |
provided that such amount shall not, at any time, exceed eight hundred and sixty-eight million, one hundred and eight thousand, one hundred and eight Dollars and eleven Cents ($868,108,108.11).
"Original Principles" has the meaning given in Recital (H)
"Overnight LIBOR" means, in relation to the Loan or any part of the Loan:
|
(a) |
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or |
|
(b) |
as otherwise determined pursuant to Clause 6.6 (Unavailability of Screen Rate), |
and if, in either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero.
"Overseas Regulations" means the United Kingdom Overseas Companies Regulations 2009.
"Parallel Debt" means any amount which an Obligor owes to the Security Trustee under Clause 27.2 (Parallel Debt (Covenant to pay the Security Trustee)).
"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.
19
"Party" means a party to this Agreement from time to time.
"Permitted Financial Indebtedness" means any Financial Indebtedness:
|
(a) |
incurred under the Finance Documents; or |
|
(b) |
permitted pursuant to Clause 12.14 (Financial Indebtedness and subordination of indebtedness). |
"Permitted Security Interests" means:
|
(a) |
|
(i) |
any of the Security Interests referred to in paragraph (b)(ii)(A) below; and |
|
(b) |
|
(i) |
any of the Security Interests referred to in paragraphs (b)(ii)(A), (b)(ii)(D), (b)(ii)(F) and (b)(ii)(G) below; and |
|
(B) |
liens on the Ship up to an aggregate amount at any time not exceeding [*] for current crew's wages and salvage and liens incurred in the ordinary course of trading the Ship; |
|
(C) |
any deposits or pledges up to an aggregate amount at any time not exceeding [*] to secure the performance of bids, tenders, bonds or contracts required in the ordinary course of business; |
20
|
(H) |
liens in favour of credit card companies on unearned customer deposits pursuant to agreements therewith; and |
|
(I) |
|
(a) |
|
(b) |
any policy or contract of insurance contemplated by or referred to in Clause 12 (General Undertakings) or any other provision of this Agreement or another Finance Document; |
|
(c) |
any other document contemplated by or referred to in any Finance Document; and |
|
(a) |
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or |
|
(b) |
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a); |
21
and covers any such transaction, matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time after that signing.
"Poseidon Principles" means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
"Post-Delivery Assignment" means an assignment of the rights of the Borrower in respect of the post-delivery guarantee liability of the Builder under Article 25 of the Shipbuilding Contract executed or to be executed by the Borrower in favour of the Security Trustee in the agreed form.
"Pre-delivery Contracts" means the Shipbuilding Contract and the Refund Guarantee.
"Pre-delivery Security" means:
|
(a) |
any document creating security over the Pre-delivery Contracts in agreed form; and/or |
|
(b) |
an Account Pledge in agreed form. |
"Principles" has the meaning given in Recital (K).
"Prohibited Person" means any person (whether designated by name or by reason of being included in a class of persons) against whom Sanctions are directed.
"Protocol of Delivery and Acceptance" means the protocol of delivery and acceptance of the Ship to be signed by the Borrower and the Builder in accordance with Article 8 of the Shipbuilding Contract.
"Qualifying Certificate" means the certificate to be issued by the Builder on each Drawdown Date under Tranche A and under Tranche B and issued to the Agent and copied to the Borrower substantially in the form set out in Schedule 5 (Qualifying Certificate).
"Quotation Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would
22
normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
"Reference Bank Quotation" means any quotation supplied to the Agent by a Reference Bank.
"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:
as the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or
|
in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars for the relevant period with reference to the unsecured wholesale funding market. |
"Reference Banks" means such entities as may be appointed by the Agent in consultation with the Borrower.
"Refund Guarantee" means any irrevocable and unconditional guarantee issued or to be issued by a Refund Guarantor in favour of the Borrower under the Shipbuilding Contract in the form annexed to the Sixth Addendum or in any other form acceptable to the Joint Mandated Lead Arrangers and the SACE Agent.
"Refund Guarantor" means a bank, insurance company or other financial institution acceptable to the Lenders and SACE which, at the time of issue by it of a Refund Guarantee, has a minimum credit rating of at least BBB- at Standard & Poor's (or, where the relevant Refund Guarantor is not rated by Standard & Poor's, the equivalent rating at Moody's or where the relevant Refund Guarantor is not rated by Standard & Poor's or Moody's, the equivalent rating at Fitch).
"Relevant Interbank Market" means the London interbank market.
"Relevant Jurisdiction" means, in relation to an Obligor:
|
(a) |
|
(c) |
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Interests created, or intended to be created, under the Finance Documents to which it is a party. |
23
"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Repayment Date" means a date on which a repayment is required to be made under Clause 5 (Repayment).
"Replacement Benchmark" means a benchmark rate which is:
|
formally designated, nominated or recommended as the replacement for a Screen Rate by: |
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark" will be the replacement under paragraph (Bii) above;
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or |
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate. |
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Requisition Compensation" includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of "Total Loss".
"Restricted Country" means a country or territory that is the subject of any comprehensive Sanctions barring dealings with such country or territory.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"RG Downgrade Event" means an event which occurs when a Refund Guarantor ceases to maintain a credit rating of at least BBB- at Standard & Poor's (or, where the relevant Refund Guarantor is not rated by Standard & Poor's, the equivalent rating at Moody's or where the relevant Refund Guarantor is not rated by Standard & Poor's or Moody's, the equivalent rating at Fitch).
"SACE" means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
"SACE Agent" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of seven billion eight hundred and fifty one million six
24
hundred and thirty six thousand three hundred and forty two Euros (€7,851,636,342.00) and its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, registered under the n° Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre or any successor of it appointed under Clause 26 (Role of the Agent and the Joint Mandated Lead Arrangers).
"SACE Insurance Policy" means the insurance policy (as amended and supplemented from time to time) in respect of this Agreement (which, in all material respects, is not inconsistent with the commercial terms of this Agreement) issued or to be issued by SACE for the benefit of the Lenders in respect of one hundred per cent. (100%) of the Loan in form and substance satisfactory to the Agent and all the Lenders.
"SACE Premium" means the amount payable by the Borrower to SACE directly or through the Agent in two instalments, being the SACE Premium Instalments, in respect of the SACE Insurance Policy as set out in Clause 88.1 (SACE Premium and Italian Authorities), in addition to the Additional SACE Premium (provided, for the avoidance of doubt, that the Additional SACE Premium shall not be financed).
"SACE Premium Instalments" means each of the First Instalment and Second Instalment.
"SACE Required Documents" means in relation to each Drawdown Notice under Tranche A and under Tranche B:
|
(a) |
|
(b) |
each of the other documents, information and other evidence specified in or required to be enclosed with such Qualifying Certificate. |
"Safety Management Certificate" has the meaning given to it in the ISM Code.
"Sanctions" means any sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):
|
(b) |
imposed by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC); or |
|
(c) |
"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
"Screen Rate Contingency Period" means fifteen (15) Business Days.
25
"Screen Rate Replacement Event" means, in relation to a Screen Rate:
|
(a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrower materially changed; |
(b)
(i)
|
(A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or |
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent, |
provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate; |
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or |
|
(iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or |
|
in the case of a Screen Rate for LIBOR, the supervisor of the administrator of that Screen Rate makes a public announcement or publishes information: |
|
stating that that Screen Rate is no longer or, as of a specified future date will no longer be, representative of the underlying market or economic reality that it is intended to measure and that representativeness will not be restored (as determined by such supervisor); and |
|
with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication; or |
|
(c) |
the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: |
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Borrower) temporary; or |
26
|
(ii) |
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than the Screen Rate Contingency Period; or |
|
(d) |
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. |
"Second Instalment" means the second instalment of the SACE Premium as more particularly described in paragraph (b) of Clause 8.1 (SACE Premium).
"Secured Liabilities" means all liabilities which the Borrower, the Obligors or any of them have, at the date of the Original Facility Agreement or at any later time or times, under or in connection with any Finance Document or any judgment relating to any Finance Document; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
"Secured Party" means SACE, the Agent, the Security Trustee, the SACE Agent, the Joint Mandated Lead Arrangers or any Lender whether at the date of the Original Facility Agreement or any later time.
|
(b) |
the security rights of a plaintiff under an action in rem; and |
"Security Period" means the period commencing on the date of the Original Facility Agreement and ending on the date on which:
|
(a) |
all amounts which have become due for payment by the Borrower or any Obligor under the Finance Documents have been paid; |
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document; |
27
|
(c) |
the Security Trustee's interest in any turnover trust created under the Finance Documents; |
except:
|
(i) |
rights intended for the sole benefit of the Security Trustee; and |
|
(ii) |
any moneys or other assets which the Security Trustee has transferred to the Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement. |
"Security Requirement" means the amount in Dollars (as certified by the Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which is at any relevant time one hundred and twenty-five per cent (125%) of the Loan.
"Security Trustee" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of seven billion eight hundred and fifty one million six hundred and thirty six thousand three hundred and forty two Euros (€7,851,636,342.00) and its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, registered under the n° Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre or any successor of it appointed under Clause 27 (The Security Trustee).
"Security Value" means the amount in Dollars (as certified by the Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which, at any relevant time, is the aggregate of (i) the charter free market value of the Ship as most recently determined in accordance with Clause 13.4 (Valuation of the Ship); and (ii) the market value of any additional security for the time being actually provided to the Agent pursuant to Clause 15 (Security Value Maintenance).
"Servicing Party" means the Agent or the Security Trustee.
"Shares Security Deed" means a Bermudian law document dated 12 April 2017, executed by the Shareholder in favour of the Security Trustee and creating security over the share capital in the Borrower in the agreed form.
28
"Shareholder" means NCL International Ltd., a Bermuda company with its registered office at Park Place 55, Par-la-Ville Road, Hamilton HM 11, Bermuda.
"Ship" means the passenger cruise ship currently designated with Hull No. [*] (as more particularly described in the Shipbuilding Contract) to be constructed under the Shipbuilding Contract and to be delivered to, and purchased by, the Borrower and registered in its name under an Approved Flag.
"Shipbuilding Contract" has the meaning given in Recital (FN).
"SIMEST" means Società Italiana per Le Imprese all'Estero - SIMEST Spa, which grants export subsidies in Italy under and according to the Italian Legislative Decree n. 143/98 and its amendments.
"Specified Time" means a day or time determined in accordance with the following:
|
(a) |
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and |
|
(b) |
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance with Clause 6.7 (Calculation of Reference Bank Rate), noon on the Quotation Day. |
"Subordinated Debt Security" has the meaning given in paragraph (b)(ii) of Clause 12.14 (Financial Indebtedness and subordination of indebtedness).
"Subsidiary" has the following meaning:
a company (S) is a subsidiary of another company (P) if:
|
(b) |
P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or |
|
(c) |
P has the direct or indirect power to appoint or remove a majority of the directors of S; or |
|
(d) |
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P, |
and any company of which S is a subsidiary is a parent company of S.
"Supplemental Pre-delivery Security" means a deed to be entered into pursuant to the June 2021 Amendment and Restatement Agreement between the Borrower and the Security Trustee, supplemental to the Pre-delivery Security, creating security over the Pre-delivery Contracts.
"Tax" means any tax, levy, impost, duty, assessment, fee, deduction or other charge or withholding of a similar nature imposed by any governmental authority (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
29
"Total Commitments" means the aggregate of the Total Tranche A Commitments, the Total Tranche B Commitments and the Total Tranche C Commitments.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Ship; |
|
(c) |
any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless it is within 1 month redelivered to the Borrower's full control. |
|
(a) |
in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown, the date when the Ship was last heard of; |
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest of: |
|
(i) |
the date on which a notice of abandonment is given to the insurers; and |
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and |
"Total Tranche A Commitments" means the aggregate of the Tranche A Commitments, being eight hundred and sixty-eight million, one hundred and eight thousand, one hundred and eight Dollars and eleven Cents ($868,108,108.11) as at the date of the Original Facility Agreement.
"Total Tranche B Commitments" means the aggregate of the Tranche B Commitments, being two hundred and fifty-eight million, seven hundred and forty-four thousand, four hundred and forty-four Dollars and forty-four Cents ($258,744,444.44) as at the date of this Agreement.
"Total Tranche C Commitments" means the aggregate of the Tranche C Commitments, being sixteen million, eight hundred and sixty thousand, one hundred and fifty-six Dollars and thirty-two Cents ($16,860,156.32) as at the date of this Agreement.
"Tranche" means Tranche A, Tranche B or Tranche C.
"Tranche A" means the part of the Facility made or to be made available by the Tranche A Lenders to the Borrower to finance (i) up to the Eligible Amount, the Dollar Equivalent of six hundred and forty million Euros (€640,000,000.00), corresponding to all or part of eighty per
30
cent. (80%) of the Final Contract Price, (ii) the First Instalment of the SACE Premium and (iii) the Second Instalment of the SACE Premium.
"Tranche A Commitments" means, in relation to a Tranche A Lender, the amount set opposite its name under the heading "Tranche A Lenders" in Part A of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche A Commitment transferred to it under this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche A Lender" means a bank, financial institution, trust, fund or other entity listed in Part A of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Tranche B" means the part of the Facility to be made available by the Tranche B Lenders to the Borrower to finance:
|
up to the Upsize Allowance Eligible Amount, the Dollar Equivalent of Euros one hundred eighty-five million six hundred thousand (€185,600,000), corresponding to all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
|
100% of the Tranche B Premium to be paid in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium). |
"Tranche B Commitments" means, in relation to a Tranche B Lender, the amount set opposite its name under the heading "Tranche B Lenders" in Part B of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche B Commitment transferred to it under this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche B Lender" means a bank, financial institution, trust, fund or other entity listed in Part B of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Tranche B Premium" has the meaning given to this term in paragraph (a) of Clause 8.6 (Tranche B Premium).
"Tranche C" means the part of the Facility to be made available by the Tranche C Lenders to the Borrower to finance, if applicable, the second instalment of the Additional SACE Premium, calculated in accordance with paragraph (a)(ii) of Clause 8.5 (Additional Premium).
"Tranche C Commitments" means, in relation to a Tranche C Lender, the amount set opposite its name under the heading "Tranche C Lenders" in Part C of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche C Commitment transferred to it under this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche C Lender" means a bank, financial institution, trust, fund or other entity listed in Part C of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Transaction Documents" means the Finance Documents and the Underlying Documents.
31
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
"Underlying Documents" means the Shipbuilding Contract, the Refund Guarantee, any Management Agreement, any bareboat charter and any charter and associated guarantee in respect of which a notice of assignment is required to be served under the terms of the General Assignment.
"Unpaid Sum" means (i) any sum due and payable but unpaid by an Obligor under the Finance Documents and (ii) any part of the Aggregate SACE Premium unpaid by the Borrower.
"Upsize Allowance" means an allowance in relation to:
|
the improvements, changes and modifications agreed between the Borrower (as Owner under the Shipbuilding Contract) and the Builder, pursuant to article 9.2 of the Shipbuilding Contract. |
"Upsize Allowance Eligible Amount" means eighty per cent. (80%) of the Dollar Equivalent of the Upsize Allowance Price.
"Upsize Allowance Price" means the price for the Upsize Allowance, in an amount of two hundred and thirty-two million Euros (€232,000,000).
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
"Write-down and Conversion Powers" means:
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
|
(b) |
in relation to any other applicable Bail-In Legislation: |
32
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
|
(ii) |
any similar or analogous powers under that Bail-In Legislation; and |
|
(c) |
in relation to any UK Bail-In Legislation: |
|
(i) |
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and |
|
(ii) |
any similar or analogous powers under that UK Bail-In Legislation. |
|
1.2 |
In this Agreement:
"Agent", the "SACE Agent", the "Joint Mandated Lead Arranger", the "Security Trustee", any "Creditor Party", any "Secured Party", any "Lender", any "Tranche A Lender", any "Tranche B Lender", any "Tranche C Lender", any "Obligor" or any other "person", shall be construed so as to include its successors in title, permitted assigns and permitted transferees.
"approved by the Lenders" (or any similar determination or instruction by the Lenders) means approved in writing by the Agent acting on the instructions of all the Lenders and SACE (on such conditions as they may respectively impose) (or the Lenders only to the extent the SACE Insurance Policy does not cover the event for which such instruction or approval is required) and any requirement for approval by all the Lenders shall mean prior approval.
"approved by the Majority Lenders" (or any similar determination or instruction by the Majority Lenders) means approved in writing by the Agent acting on the instructions of the Majority Lenders and SACE (or the Majority Lenders only to the extent the SACE Insurance Policy does not cover the event for which such instruction or approval is required) (on such conditions as they may respectively impose) and otherwise approved means approved in writing by the Agent (on such conditions as the Agent may impose) and approval and approve shall be construed accordingly and any requirement for approval by the Agent or the Majority Lenders shall mean prior approval.
33
"asset" includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment.
"company" includes any partnership, joint venture and unincorporated association.
"consent" includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained.
"date of this Agreement" means _____ February_____________ 2021.
"document" includes a deed; also a letter or electronic mail.
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Taxes including VAT.
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council.
"legal or administrative action" means any legal proceeding or arbitration and any administrative or regulatory action or investigation.
"liability" includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise.
"months" shall be construed in accordance with Clause 1.4 (Meaning of "month").
"parent company" has the meaning given in the definition of "Subsidiary".
"person" includes any individual, firm, company, corporation, government, any state, political sub-division of a state and local or municipal authority, agency of a state or any association, trust, joint venture, consortium or partnership; and any international organisation (whether or not having a separate legal personality).
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure.
"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.
|
1.3 |
"approved" means, for the purposes of Clause 14 (Insurance Undertakings), approved in writing by the Agent.
34
"excess risks" means the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of the Ship in consequence of its insured value being less than the value at which the Ship is assessed for the purpose of such claims.
"obligatory insurances" means all insurances effected, or which the Borrower is obliged to effect, under Clause 14 (Insurance Undertakings) or any other provision of this Agreement or another Finance Document.
"policy" in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.
"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision.
"war risks" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03), clause 24 of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls)(1/10/83).
|
1.4 |
A period of one or more "months" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started ("the numerically corresponding day"), but:
and "month" and "monthly" shall be construed accordingly.
|
1.5 |
Non-applicable provisions between the Obligors and German Lenders |
(a)The undertakings and covenants given under paragraph (d) of Clause 12.2 (Information), Clause 12.4 (Illicit Payments), Clause 12.5 (Prohibited Payments), Clause 12.25 (Compliance with laws etc.) or provisions contained in Clause 20.3 (Miscellaneous indemnities) or Clause 21.1 (Illegality and Sanctions) and the representations and warranties given under paragraphs (u), (v), (y), (z) and (jj) of Clause 11.2 (Continuing representations and warranties) and paragraph (j) of Clause 11.3 (Representations on the Delivery Date) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such undertakings and covenants and such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section
35
4 paragraph 1 a no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
|
1.6 |
In this Agreement:
|
(d) |
references to, or to a provision of, any law or regulation include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; |
|
(f) |
words denoting the singular number shall include the plural and vice versa; and |
|
(g) |
Clauses 1.1 (Definitions) to 1.6 (General Interpretation) apply unless the contrary intention appears. |
|
1.7 |
In interpreting a Finance Document or any provision of a Finance Document, all clauses, sub-clauses and other headings in that and any other Finance Document shall be entirely disregarded.
|
1.8 |
36
|
2 |
|
2.1 |
Subject to the other provisions of this Agreement,:
|
in reimbursement to the Borrower or in payment to the Builder, up to the Eligible Amount, of all or part of eighty per cent. (80%) of the Final Contract Price; |
|
in reimbursement to the Borrower of the amount of the First Instalment of the SACE Premium paid by it to SACE in accordance with paragraph (a) of Clause 8.1 (SACE Premium); and |
|
in payment to SACE of the amount of the Second Instalment of the SACE Premium payable by the Borrower to SACE in accordance with paragraph (b) of Clause 8.1 (SACE Premium).; |
|
in reimbursement to the Borrower or in payment to the Builder (as set out in the relevant Drawdown Notice) up to the Upsize Allowance Eligible Amount, of all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
|
in reimbursement to the Borrower or in payment to SACE of the amount of the Tranche B Premium payable by the Borrower to SACE in accordance with paragraph (a)(i) of Clause 8.6 (Tranche B Premium); |
|
in payment to SACE of the amount of the Tranche B Premium payable by the Borrower to SACE in accordance with paragraph (a)(ii) of Clause 8.6 (Tranche B Premium). |
|
2.2 |
Subject to the other provisions of this Agreement,:
|
each Tranche A Lender shall participate in each Advance under Tranche A in the proportion which, as at the relevant Drawdown Date, its Tranche A Commitment bears to the Total Tranche A Commitments; |
37
|
each Tranche C Lender shall participate in the Advance under Tranche C in the proportion which, as at the relevant Drawdown Date, its Tranche C Commitment bears to the Total Tranche C Commitments. |
|
2.3 |
Purpose of Loan |
The Borrower undertakes with each Secured Party to use each Advance only to pay for:
|
goods and services of Italian origin incorporated in the design, construction or delivery of the Ship; |
|
reimbursement to the Borrower of all or part of eighty per cent. (80%) of the First Shipbuilding Contract Instalment; |
|
reimbursement to the Borrower of the First Instalment of the SACE Premium paid by the Borrower direct to SACE in accordance with paragraph (a) of Clause 8.1 (SACE Premium); and |
|
the Second Instalment of the SACE Premium payable in accordance with paragraph (b) of Clause 8.1 (SACE Premium).; |
|
for goods and services in relation to the Upsize Allowance; and |
provided that the first Advance under Tranche B shall also be used to pay 100% of the Tranche B Premium, payable in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium); and
|
the Advance under Tranche C only to pay for the second instalment of the Additional SACE Premium which may be payable in accordance with paragraph (a)(ii) of Clause 8.5 (Additional Premium). |
|
2.4 |
38
|
(c) |
A Creditor Party and SACE may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. |
|
2.5 |
No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
|
2.6 |
The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
|
(a) |
|
(b) |
any Obligor or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document, |
and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement or any other Finance Document.
|
3 |
|
3.1 |
The Borrower may only draw an Advance under a Tranche when the following conditions have been fulfilled to the satisfaction of the Agent and provided no Event of Default shall have occurred and remains unremedied or is likely to occur as a consequence of the drawing of the Advance:
|
3.2 |
The Agent shall have received no later than the date of the Original Facility Agreement:
39
|
(i) |
the Bermudian Obligors have been duly formed and are validly existing as companies under the laws of Bermuda; |
|
(ii) |
the Finance Documents to which each Bermudian Obligor is a party to fall within the scope of the Bermudian Obligors' purpose as defined by their Memoranda of Association and By-laws; |
|
(iii) |
each Bermudian Obligor's representatives were at the date of the Original Facility Agreement fully empowered to sign the Finance Documents to which it is a party; |
|
(v) |
no withholding tax or stamp duty implications arise by virtue of the Bermudian Obligors entering into the Finance Documents to which they are a party respectively; |
|
(vii) |
the Finance Documents to which each Bermudian Obligor is a party constitute the legal, valid and binding obligations of that Bermudian Obligor enforceable in accordance with its terms, |
and containing such qualifications and assumptions as are standard for opinions of this type;
|
(c) |
an opinion from legal counsel to the Secured Parties as to Bermudian law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Shares Security Deed; |
|
(d) |
|
(e) |
such documentary evidence as the Agent and its legal advisers may require in relation to the due authorisation and execution by the Borrower and the Builder of the Shipbuilding Contract and of all documents to be executed by the Borrower and the Builder; |
|
(g) |
duly executed originals of the Original Guarantee and the Shares Security Deed and of each document to be submitted pursuant to it; |
|
(h) |
such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender or SACE) or any Lender or SACE (for itself) in order for the Agent and such Lender or SACE to carry out and be satisfied it has complied with all necessary "know your |
40
customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents;
|
(i) |
payment of [*] per cent. ([*]%) of the Joint Mandated Lead Arranger structuring fee payable in accordance with paragraph (a)(i) of Clause 9 (Fees); |
|
(j) |
payment of the initial portion of the Agent Structuring Fee (as defined in the Fee Letter), payable in accordance with terms of the Fee Letter; and |
|
(k) |
an agreed form version of the Italian law tax opinion from legal counsel to the Creditor Parties in respect of the tax treatment of payments under the SACE Insurance Policy. |
|
3.3 |
No later than forty-five (45) days before the first Drawdown Date under Tranche A |
The Agent shall have received from the Borrower no later than forty-five (45) days before the first Drawdown Date under Tranche A (and on each subsequent date on which a Compliance Certificate is to be received by the Security Trustee pursuant to clause 11.3(c) of the Original Guarantee) a duly completed Compliance Certificate from the Guarantor.
|
3.4 |
No later than [*] days before the first Drawdown Date under Tranche A |
The Agent shall have received from the Borrower no later than [*] days before the first Drawdown Date under Tranche A:
|
(b) |
the SACE Insurance Policy documentation relating to the transaction contemplated by this Agreement issued on terms whereby the SACE Insurance Policy will enter into full force and effect upon fulfilment of the conditions specified therein to be fulfilled on or before the first Drawdown Date; and |
|
(c) |
a certified true copy bank statement evidencing receipt by the Builder of the First Shipbuilding Contract Instalment (as described in Recital (B)). |
|
3.5 |
No later than five (5) Business Days before each Drawdown Date under any Tranche |
The Agent shall have received no later than five (5) Business Days before each Drawdown Date under any Tranche a Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Advance to be drawn down.
|
3.6 |
No later than five (5) Business Days before the First Drawdown Date under Tranche A |
The Agent shall have received no later than five (5) Business Days before the first Drawdown Date under Tranche A:
|
(a) |
an agreed form version of the Pre-delivery Security and of each document to be issued pursuant to it; |
41
|
(b) |
an agreed form version of the opinion to be issued by legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Pre-delivery Security; |
|
(c) |
an agreed form version of the opinion to be issued by legal counsel to the Secured Parties as to Bermuda law in form and substance satisfactory to the Agent and the Secured Parties in respect of the Borrower's execution of the Pre-delivery Security; |
|
(d) |
|
(e) |
evidence that the First Instalment has been paid; |
|
(f) |
an agreed form version of the Interest Make-Up Agreement relative to the Loan; |
|
(h) |
if applicable, an agreed form version of the Subordinated Debt Security; and |
|
(i) |
the agreed form version of any opinions to be issued by legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security (if applicable), in form and substance satisfactory to the Agent and the Secured Parties. |
|
3.7 |
The Agent shall have received no later than the first Drawdown Date under Tranche A:
|
(a) |
a duly executed original of the Pre-delivery Security (excluding any Account Pledge) and of each document to be issued pursuant to it; |
|
(b) |
an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Pre-delivery Security (excluding any Account Pledge); |
|
(c) |
an opinion from legal counsel to the Secured Parties as to Bermuda law in form and substance satisfactory to the Agent and the Secured Parties in respect of the Borrower's execution of the Pre-delivery Security (excluding any Account Pledge); |
|
(d) |
an original of the Interest Make-Up Agreement relative to the Loan and in full force and effect; |
|
(f) |
an Italian law tax opinion from legal counsel to the Creditor Parties in respect of the tax treatment of payments under the SACE Insurance Policy. |
42
The Agent shall have received, no later than the first Drawdown Date under Tranche B:
|
a duly executed original of the Supplemental Pre-delivery Security and of each document to be issued pursuant to it; |
|
a duly executed original of the relevant addendum to the Interest Make-Up Agreement; |
|
a duly executed original of the relevant addendum to the SACE Insurance Policy; |
|
a copy of the Seventh Addendum and any other relevant addendum to the Shipbuilding Contract; |
|
No later than the Drawdown Date in respect of each Advance under Tranche A other than first Advance under Tranche A and the Delivery Advance under Tranche A |
The Agent shall have received no later than the Drawdown Date in respect of each Advance under Tranche A other than in respect of the first Advance under Tranche A and the Delivery Advance under Tranche A, a copy of the class milestone certificate in respect of the instalment due under the Shipbuilding Contract to which the Advance relates issued by the classification society.
|
No later than the Drawdown Date in respect of each Advance under Tranche A and Tranche B other than the Delivery Advance under Tranche A and Tranche B |
The Agent shall have received no later than the Drawdown Date in respect of each Advance under Tranche A and Tranche B, other than the Delivery Advance under Tranche A and Tranche B:
|
a Certified Copy of any executed Refund Guarantee in respect of such Advance and of the power of attorney (or other form of authority) and related corporate authorities pursuant to which such Refund Guarantee was signed; |
|
as regards any previous Advance, in the event the Refund Guarantee issued in respect of such previous Advance cannot be renewed or extended: |
|
evidence that an Acceptable Deposit has accordingly been transferred to the Account pursuant to the terms of the Shipbuilding Contract; and |
43
corporate authorities pursuant to which such Account Pledge was signed and (z) any usual standard form opinions from legal counsel to the Secured Parties required by the Secured Parties in respect of the execution and/or the validity and enforceability of the Account Pledge;
|
a copy of the relevant invoice from the Builder in respect of the instalment under the Shipbuilding Contract to which the Advance relates; |
|
written confirmation from the SACE Agent that there is no outstanding notice from SACE which terminates, cancels or repudiates, withdraws or suspends the SACE Insurance Policy or states that the SACE Insurance Policy is not effective or not guaranteed by the Republic of Italy; |
|
a copy of a duly executed Qualifying Certificate; |
|
a certificate confirming that: |
|
the Shipbuilding Contract continues to be in full force and effect; and, |
|
a certificate of confirmation confirming that: |
44
|
no default or mandatory prepayment event pursuant to Clause 16 (Cancellation, Prepayment and Mandatory Prepayment) is continuing or would result from the proposed Advance; |
|
the repeating representations and, in relation to the first Advance and first Drawdown Notice, all of the other representations set out in Clause 11 (Representations and Warranties) (except the representations to be made on the Delivery Date pursuant to paragraph (b) of Clause 11.1 (Timing and repetition)) are true; |
|
a certificate of confirmation attaching an original or a certified copy of each of the SACE Required Documents and the Agent shall be satisfied that the SACE Required Documents on their face appear properly completed and comply with the requirements of this Agreement and the requirements of the SACE Insurance Policy; |
|
if applicable, a duly executed original of the Subordinated Debt Security; and |
|
any opinions from legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security (if applicable), in form and substance satisfactory to the Agent and the Secured Parties. |
3.103.11No later than four (4) years before the Intended Delivery Date
The Agent shall have received no later than four (4) years before the Intended Delivery Date, payment of the remaining [*] per cent. ([*]%) of the Joint Mandated Lead Arranger structuring fee payable in accordance with paragraph (a)(ii) of Clause 9 (Fees).
3.113.12No later than ninety (90) days before the Intended Delivery Date
The Agent shall have received no later than ninety (90) days before the Intended Delivery Date:
|
(a) |
notification from the Borrower of its chosen Maritime Registry; and |
|
(b) |
3.123.13No later than sixty (60) days before the Intended Delivery Date
The Agent shall have received from the Borrower no later than sixty (60) days before the Intended Delivery Date:
|
(a) |
|
(b) |
a notice from the Borrower as described in paragraph (a) of Clause 8.4 (Refund) and in paragraph (f) of Clause 8.6 (Tranche B Premium); and |
45
3.133.14No later than fifteen (15) Business Days before the Intended Delivery Date
The Agent shall have received no later than fifteen (15) Business Days before the Intended Delivery Date insurance documents in form and substance satisfactory to the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date.
3.143.15No later than five (5) Business Days before the Intended Delivery Date
The Agent shall have received no later than five (5) Business Days before the Intended Delivery Date:
|
(b) |
a final confirmation of the Intended Delivery Date signed by a duly authorised signatory of the Borrower, and counter-signed by a duly authorised signatory of the Builder. |
3.153.16No later than the Delivery Date
|
In respect of the Advance to be made available by the Tranche A Lenders on the Delivery Date, the Agent shall have received no later than the Delivery Date: |
|
if applicable, a duly executed original of the Subordinated Debt Security; |
|
any opinions from legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security, in form and substance satisfactory to the Agent and the Secured Parties; |
|
evidence of payment to and receipt by the Builder of any other part of the Final Contract Price as at the Delivery Date not being financed hereunder; |
|
payment of the remaining portion of the Agent Structuring Fee (as defined in the Fee Letter), payable in accordance with terms of the Fee Letter; |
|
evidence of payment of all amounts which are due and payable hereunder by the Borrower on or prior to the Delivery Date; |
|
the Shipbuilding Contract continues to be in full force and effect; |
|
no default or mandatory prepayment event pursuant to Clause 16 (Cancellation, Prepayment and Mandatory Prepayment) is continuing or would result from the Delivery AdvanceAdvances; |
46
|
the repeating representations as set out in Clause 11 (Representations and Warranties) are true; and |
|
the representations to be made on the Delivery Date pursuant to paragraph (b) of Clause 1111.3 (Representations and Warrantieson the Delivery Date) are true; |
|
In respect of the Advance to be made available by the Tranche B Lenders on Delivery Date, the Agent shall have received no later than the Delivery Date: |
|
a copy of the relevant invoice from the Builder in respect of the Upsize Allowance to which such Advance relates; |
|
the documents, evidence or confirmations, as relevant, set out in paragraphs (a)(i), (a)(v), (a)(vi), (a)(vii) and (a)(viii) of this Clause 3.16 (No later than the Delivery Date) and |
|
evidence of payment to and receipt by the Builder of any other part of the Upsize Allowance Price as at the Delivery Date not being financed hereunder; |
provided always that, in relation to paragraphs (a), (b) and (c) above, the obligations of the relevant Lenders to make thesuch Advance under each of Tranche A, Tranche B and Tranche C, as applicable, available on the Delivery Date are subject to the Lenders remaining satisfied that each of the SACE Insurance Policy and the Interest Make-Up Agreement will cover the Loan following the advance of the Delivery Advancesuch Advances and delivery to the Agent of the documents listed in Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery).
Immediately prior to the delivery of the Ship by the Builder to the Borrower, the Agent shall have received:
|
(a) |
|
(i) |
the Ship will be registered in the name of the Borrower in the Maritime Registry; |
47
3.173.18Immediately following Delivery
Immediately following the delivery of the Ship by the Builder to the Borrower, the Agent shall receive:
|
(a) |
|
(b) |
an opinion from legal counsel acceptable to the Secured Parties as to the law of the Maritime Registry in form and substance satisfactory to the Agent and the Secured Parties confirming: |
48
|
(i) |
the valid registration of the Ship in the Maritime Registry; and |
|
(ii) |
the Mortgage over the Ship is a first priority security and has been validly registered in the Maritime Registry; |
|
(d) |
an opinion from legal counsel acceptable to the Secured Parties as to the laws of the state of Bermuda in form and substance satisfactory to the Agent and the Secured Parties together with the company documentation of the Borrower and a certificate of a competent officer or manager of the Borrower containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower, confirming that, without limitation: |
|
(i) |
the Mortgage, the deed of covenants constituting part of the Mortgage, the General Assignment, the Post-Delivery Assignment and the bareboat charter (if applicable) fall within the scope of the Borrower's company purpose as defined by its Memorandum of Association and By-laws and are binding on it; and |
|
(ii) |
the Borrower's representatives are fully empowered to sign the Protocol of Delivery and Acceptance, the Mortgage, the deed of covenants constituting part of the Mortgage, the General Assignment, the Post-Delivery Assignment and the bareboat charter (if applicable) and any related security pursuant to paragraph (b) of Clause 13.1 (Pooling of earnings and charters); and |
|
(e) |
the documents listed in Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery). |
3.183.19Notification of satisfaction of conditions precedent
The Agent shall notify the Tranche A Lenders and SACE, the Tranche B Lenders, the Tranche C Lenders, SACE and SIMEST, as applicable, promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in this Clause 3 (Conditions Precedent).
3.193.20Waiver of conditions precedent
If the Majority Lenders, at their discretion, subject to the prior written consent of SACE, permit an Advance under a Tranche to be borrowed before any of the conditions precedent referred to in Clause 3 (Conditions Precedent) has been satisfied, the Borrower shall ensure that that condition is satisfied within five (5) Business Days after the date (as specified in the relevant part of Clause 3 (Conditions Precedent)) or such later date as the Agent may agree in writing with the Borrower.
3.203.21Changes to SACE's or SIMEST's requirements
49
shall promptly notify the Borrower of such a change in SACE's or SIMEST's requirements (as applicable) and of the relevant amendments to be made to this Agreement or any such documents as the Agent considers appropriate.
|
(b) |
If the Agent notifies the Borrower of any proposed changes to this Agreement under paragraph (a) above, and provided that: |
|
(i) |
all the Lenders and the Borrower agree with such changes; and |
|
(ii) |
the Borrower indemnifies and holds harmless the Agent and the Lenders for any reasonable costs that it may incur arising from or in connection with any such amendments (including legal fees), |
then such changes will be made to this Agreement in accordance with the terms hereof.
3.213.22No claim against the FinanceCreditor Parties
The Borrower agrees that the FinanceCreditor Parties may act on the instructions of the Italian Authorities in relation to this Agreement.
3.223.23Examination and reliance on documents by the Agent
|
(a) |
The Agent shall ensure that an officer or employee or other person designated by it as its authorised representative is present at the Builder on the Delivery Date for the purpose of examining originals (or certified copies) of the SACE Required Documents duly signed by the parties thereto and collecting copies thereof (which copies shall be certified as true copies by an authorised signatory of the Builder and/or the Borrower, as applicable). |
|
(b) |
The Agent shall be entitled (but not obliged) to rely and act upon any documentation or information provided under this Clause 3 (Conditions Precedent), which appears on its face to have been duly completed. |
50
|
(d) |
The Agent and the Lenders shall not be obliged to enquire as to, or be responsible for, the validity, truthfulness and genuineness and (where the relevant document is a conformed copy) conformity to the original of any Drawdown Notice or any other document which appears on its face to be in order, or of any signatures thereon or any of the statements set out therein and shall be entitled to rely on the accuracy of any such statements. |
|
(e) |
In case of any discrepancy in any such documents, the Agent shall notify the Borrower in writing thereof and shall request its approval of such discrepancy in writing. |
The Agent and the Lenders shall not be responsible for any delay in making available any Advances resulting from any requirement for the delivery of further information or documents reasonably required by the Agent for the relevant conditions precedent in this Agreement to be satisfied.
|
4 |
|
4.1 |
|
The Tranche B Lenders shall not be obliged to fulfil their obligation to make an Advance available under Tranche B other than: |
|
by reimbursing to the Borrower or by paying SACE, as applicable, the amount of the Tranche B Premium referred to in paragraph (a)(i) of Clause 8.6 (Tranche B Premium); and |
|
by paying SACE the amount of the Tranche B Premium referred to in paragraph (a)(ii) of Clause 8.6 (Tranche B Premium), |
such amounts of the Tranche B Premium to be paid by the Borrower to SACE in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium).
51
|
The Borrower hereby instructs the Tranche A Lenders in accordance with this Clause 4.1 (Borrower's irrevocable payment instructions) and in accordance with Schedule 6 (Drawdown ScheduleSchedules): |
|
The Borrower hereby instructs the Tranche B Lenders in accordance with this Clause 4.1 (Borrower's irrevocable payment instructions) and in accordance with Schedule 6 (Drawdown Schedules) to: |
|
for reimbursement to the Borrower or for onward payment to SACE (such reimbursement to the Borrower or payment to SACE, as applicable, to be made for value on the first Drawdown Date under Tranche B), by drawing under this Agreement, the amount of the Tranche B Premium referred to in paragraph (a)(i) of Clause 8.6 (Tranche B Premium); and |
|
for onward payment to SACE (such payment to SACE to be made for value on the first Drawdown Date under Tranche B), by drawing under this Agreement, the amount of the Tranche B Premium referred to in paragraph (a)(ii) of Clause 8.6 (Tranche B Premium), |
such amounts of the Tranche B Premium to be paid by the Borrower to SACE pursuant to paragraph (a) of Clause 8.6 (Tranche B Premium).
|
Payment to the Builder of the amounts drawn under paragraph (ad)(i) of this Clause 4.1 (Borrower's irrevocable payment instructions) above shall be made on the relevant Drawdown |
52
Date during usual banking hours in Italy to the Builder's account as specified by the Builder in accordance with the Shipbuilding Contract and, in respect of the Delivery Advance under Tranche A, after receipt and verification by the Agent of the documents provided under Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery).
|
Save as contemplated in Clause 4.3 (Modification of payment terms) below, the payment instruction contained in this Clause 4.1 (Borrower's irrevocable payment instructions) is irrevocable. |
|
4.2 |
The Dollar amounts to be drawn down under paragraph (aparagraphs (a), (b) and (c) of Clause 4.1 (Borrower's irrevocable payment instructions) shall be calculated by the Agent on the Conversion Rate Fixing Date in accordance with the definitions of "Eligible Amount", "Upsize Allowance Eligible Amount" and "Conversion Rate" in Clause 1.1 (Definitions).
|
4.3 |
The Borrower expressly acknowledges that the payment terms set out in this Clause may only be modified with the agreement of the Italian Authorities, the Agent, the Security Trustee, the Lenders and the Borrower in the case of paragraph (aparagraphs (d)(i) and (e)(i) of Clause 4.1 (Borrower's irrevocable payment instructions) and with the agreement of the Italian Authorities, the Agent, the Lenders and the Borrower in the case of paragraphs (bd)(ii), (d)(iii), (e)(ii) and (cf) of Clause 4.1 (Borrower's irrevocable payment instructions); provided that it is the intention of the Borrower, the Lenders, the Security Trustee and the Agent that prior to the Conversion Rate Fixing Date agreement shall be reached with those financial institutions with whom the Borrower has entered into the FOREX Contracts (the "Counterparties") in order that the Euro payments due from the Counterparties under the FOREX Contracts shall be paid to the Agent for holding in escrow and to be released by the Agent simultaneously with (i) the payment of each Advance to the Builder denominated in Euro and (ii) the payment to the Counterparties of the Dollars due to them under the relevant FOREX Contracts out of the Dollar amount available under paragraph (ad)(i) and (e)(i) of Clause 4.1 (Borrower's irrevocable payment instructions), subject to the Borrower having deposited with the Agent before each Drawdown Date, if and to the extent required, any Dollar and/or Euro amounts as may be needed to ensure the payment in full of both the balance of the relevant Advance in Euro and the Dollars owed to the Counterparties under all the relevant FOREX Contracts.
|
4.4 |
Availability and conditions |
53
|
(b) |
Under this Agreement, there will be no more than five (5) Advances under this Agreement.: |
|
(c) |
The amount of the first Advance under Tranche A shall not exceed the aggregate of (i) the Dollar Equivalent of 80% of the First Shipbuilding Contract Instalment and (ii) the SACE Premium. |
|
The amount of each Advance under Tranche B (save for the first Advance under Tranche B) shall not exceed the Dollar Equivalent of eighty per cent. (80%) of the amount of the instalment due to the Builder under the Shipbuilding Contract to which that Advance relates. |
|
the Tranche A Advances cannot exceed the Total Tranche A Commitments; |
|
the Tranche B Advances cannot exceed the Total Tranche B Commitments; |
|
the Tranche C Advance cannot exceed the Total Tranche C Commitments; and |
|
the aggregate amount of the Advances under all Tranches cannot exceed the Maximum Loan AmountTotal Commitments. |
|
The Lenders shall not be under any obligation to lend any Advance to the Borrower if prior to that Advance any of the events specified in Article 20.2 of the Shipbuilding Contract occurs. |
|
4.5 |
The Agent shall promptly notify the Tranche A Lenders, the Tranche B Lenders and the Tranche C Lenders, as applicable, that it has received a Drawdown Notice in relation to a Tranche and shall inform each relevant Lender of:
|
(a) |
the amount of the Advance and the relevant Drawdown Date; |
|
(b) |
the amount of that Lender's participation in the Advance; and |
|
(c) |
54
|
4.6 |
Subject to the provisions of this Agreement, each Lender shall, on and with value on each Drawdown Date under a Tranche, make available to the Agent the amount due from that Lender under Clause 2.2 (Lenders' participations in Loan) on that Drawdown Date.
|
4.7 |
Subject to the provisions of this Agreement, the Agent shall on each Drawdown Date pay the amounts which the Agent receives from the Lenders under Clause 4.6 (Lenders to make available Contributions) in the like funds as the Agent received the payments from the Lenders:
|
(b) |
in the case of an amount referred to in paragraph (bd)(ii) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of the Borrower which the Borrower shall specify; and |
|
in the case of an amount referred to in paragraph (d)(iii) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify; |
|
in the case of an amount referred to in paragraph (e)(ii)(A) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of the Borrower which the Borrower specifies in the Drawdown Notice or SACE which the SACE Agent shall specify; |
|
in the case of an amount referred to in paragraph (e)(ii)(B) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify; and |
|
in the case of an amount referred to in paragraph (cf) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify. |
|
4.8 |
Disbursement of Advance to third party |
The payment by the Agent under Clause 4.7 (Disbursement of Advance) shall constitute the making of the Advance and the Borrower shall at that time become indebted, as principal and direct obligor, to each relevant Lender in an amount equal to that Lender's ContributionContributions.
|
5 |
|
5.1 |
The Borrower shall repay the Loan by twenty-four (24) consecutive six-monthly instalments from the earlier of (i) the Delivery Date and (ii) the date of actual disbursement of the respective delivery instalment (the "Starting Point of Repayment").
55
|
5.2 |
The first repayment instalment shall be repaid on the date falling six (6) months after the Starting Point of Repayment and the last repayment instalment on the date falling one hundred and forty-four (144) months after the Starting Point of Repayment, each date of payment of an instalment being a "Repayment Date".
|
5.3 |
Each repayment instalment of the Loan shall be of an equal amount.
|
5.4 |
On the final Repayment Date, the Borrower shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
|
6 |
|
6.1 |
The Borrower shall provide notification, signed by a duly authorised signatory of the Borrower, to the Agent at least [*] days before the first Drawdown Date under Tranche A specifying which of the Fixed Interest Rate or the Floating Interest Rate shall be applicable to all Advances until the date of payment of the final repayment instalment of the Loan.
|
6.2 |
If the Borrower has specified a Fixed Interest Rate pursuant to Clause 6.1 (Fixed or Floating Interest Rate), the Loan shall bear interest in respect of each Interest Period at the Fixed Interest Rate. Such interest shall accrue on the actual number of days elapsed based upon a 360 day year and shall be paid on the last day of each Interest Period.
|
6.3 |
If:
|
(a) |
the Borrower has specified a Floating Interest Rate pursuant to Clause 6.1 (Fixed or Floating Interest Rate); or |
|
(d) |
SIMEST has failed to make a net payment of interest to the Lenders pursuant to the Interest Make-Up Agreement, |
the rate of interest on the Loan in respect of any Interest Period shall be the Floating Interest Rate applicable for that Interest Period and the following provisions of this Clause 6 (Interest) shall apply (in the case of the circumstances referred to in paragraph (b) above, with effect
56
from the date on which the Interest Make-Up Agreement ceases to be in effect, with such consequential amendments as shall be necessary to give effect to the switch from a Fixed Interest Rate to a Floating Interest Rate).
|
6.4 |
Subject to the provisions of this Agreement, interest on the Loan, as applicable, in respect of each Interest Period shall accrue on the actual number of days elapsed based upon a 360 day year and shall be paid by the Borrower on the last day of that Interest Period.
|
6.5 |
The Agent shall notify the Borrower and each relevant Lender of each Floating Interest Rate and the duration of each Interest Period as soon as reasonably practicable after each is determined and no later than the Quotation Day.
|
6.6 |
|
(b) |
Reference Bank Rate: If no Screen Rate is available for LIBOR for: |
|
(i) |
Dollars; |
|
(ii) |
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate, |
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(c) |
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause 6.9 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period. |
|
6.7 |
|
(b) |
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period. |
|
6.8 |
If before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed [*] per cent. of the Loan or the relevant part of
57
the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.9 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
6.9 |
|
(i) |
the Margin; and |
|
(c) |
Subject to Clause 6.10 (Replacement of Screen Rate), any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties. |
|
(d) |
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero. |
|
(e) |
If this Clause 6.9 (Cost of funds) applies pursuant to Clause 6.8 (Market disruption) and: |
|
(i) |
a Lender's Funding Rate is less than LIBOR; or |
|
(ii) |
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, |
the cost to that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR.
|
(f) |
If this Clause 6.9 (Cost of funds) applies but any Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders. |
|
6.10 |
If a Screen Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
(a) |
providing for the use of a Replacement Benchmark; and |
(b)
58
|
(i) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark; |
|
(ii) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement); |
|
(iii) |
implementing market conventions applicable to that Replacement Benchmark; |
|
(iv) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or |
|
(v) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent of the Agent (acting on the instructions of the Majorityall Lenders), SACE and SIMEST (if applicable) and the Borrower.
|
(c) |
If, as at 30 September 20212022, this Agreement provides that the rate of interest for the Loan in Dollars is to be determined by reference to the Screen Rate for LIBOR: |
|
(i) |
a Screen Rate Replacement Event shall be deemed to have occurred on that date in relation to the Screen Rate for Dollars; and |
|
(d) |
If an amendment is required as contemplated in this Clause 6.10 (Replacement of Screen Rate), the Obligors shall reimburse each of the Agent and the Security Trustee for the amount of all costs and expenses (including legal fees and other professional expenses) incurred by each Secured Party in relation to such amendment. |
|
6.11 |
If no agreement is reached with the Borrower under Clause 6.10 (Replacement of Screen Rate), the Borrower may give the Agent not less than 15 Business Days', or, if the Fixed Interest Rate has been selected pursuant to Clause 6.1 (Fixed or Floating Interest Rate) the Borrower may
59
give the Agent not less than 30 days' notice of its intention to prepay at the end of the interest period set by the Agent.
|
6.12 |
Prepayment; termination of Commitments |
A notice under Clause 6.11 (Notice of prepayment) shall be irrevocable; the Agent shall promptly notify the Lenders and, if the Fixed Interest Rate has been selected by the Borrower, SIMEST of the Borrower's notice of intended prepayment; and:
|
(a) |
on the date on which the Agent serves that notice, the Total Commitments shall be cancelled; and |
|
6.13 |
The provisions of Clause 16 (Cancellation, Prepayment and Mandatory Prepayment) shall apply in relation to the prepayment.
|
6.14 |
Notwithstanding anything to the contrary in this Agreement:
|
(a) |
in the event of any circumstances falling within Clause 6.8 (Market Disruption) which might affect the advance of an Advance under any Tranche on a Drawdown Date (the "Relevant Circumstances"): |
|
(ii) |
occurring after the Relevant Date, each Lender will notify the Borrower (through the Agent) immediately each Lender become aware of the Relevant Circumstances; |
60
Contributions in Dollars (or, if unavailable in Dollars, then in any available currency). Such discussions shall be without obligation on the Lenders provided that during such discussion period, such circumstances continue.
|
6.15 |
|
(c) |
In the event that a change in currency is not acceptable to the Lenders or the Borrower, the provision of paragraph (c) of Clause 6.3 (Floating Interest Rate) shall apply. |
|
7 |
|
7.1 |
The first Interest Period applicable to an Advance shall commence on the Drawdown Date in respect of that Advance and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
|
7.2 |
Subject to Clause 7.3 (Duration of Interest Periods for Repayment Instalments), each Interest Period shall be:
|
(a) |
6 months; or |
|
(b) |
in the case of the first Interest Period applicable to the second and any subsequent Advance, a period ending on the last day of the Interest Period then current, whereupon all of the Advances shall be consolidated and treated as a single Advance; and |
|
7.3 |
Any Interest Period that includes a Repayment Date shall expire on such Repayment Date.
|
8 |
|
8.1 |
The estimated SACE Premium for a maximum amount of [*] (being [*] per cent. ([*]%) of the Original Maximum Loan Amount) is due and payable in two instalments as follows:
61
|
8.2 |
The Borrower irrevocably agrees to pay the First Instalment, and to instruct the Tranche A Lenders to pay the Second Instalment on behalf of the Borrower as follows:
Consequently, the Borrower hereby irrevocably instructs the Agent on behalf of the Tranche A Lenders to pay the Second Instalment to SACE on the first Drawdown Date under Tranche A in accordance with paragraph (ca)(iii) of Clause 2.1 (Amount of facility) of this Agreement and to reimburse the Borrower by the Borrower drawing under the Loan the amount of the First Instalment in accordance with paragraph (ba)(ii) of Clause 2.1 (Amount of facility) of this Agreement.
The First Instalment and Second Instalment each financed by the Loan will be repayable in any event by the Borrower to the Tranche A Lenders in the manner specified in Clause 5 (Repayment) and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan.
|
8.3 |
62
|
(c) |
Each Party further undertakes not to act in a manner which is inconsistent with the terms of the SACE Insurance Policy and the Interest Make-Up Agreement. |
|
8.4 |
|
(d) |
To the extent the Borrower is entitled to the Refund, SACE shall transfer the Refund as soon as practicably possible to the SACE Agent who shall as soon as practicably possible following receipt thereof transfer such amount to the Borrower. The Borrower hereby acknowledges that SACE shall not be liable to pay interest to the Borrower on the amount of the Refund. |
63
|
(f) |
Except as set out in paragraph (a) and (c) above, no part of the SACE Premium is refundable to any Obligor. |
|
(g) |
In no event shall the SACE Agent be liable for any refund of the SACE Premium to be made by SACE or for the calculation of any Refund and/or withholding thereof. |
|
8.5 |
|
The Additional SACE Premium is not financed. |
64
notification by SACE to the SACE Agent and the Borrower of the amount of the second instalment of the Additional SACE Premium.
SACE Premium refund = Loan amount outstanding at the time of the Leonardo Six Intended Delivery Date x [*]% x ((TTMi + 0.5)/2)/6.25) x (Revised SACE Premium Rate – p%),
where:
|
(i) |
TTMi means Time To Maturity at the date of the Leonardo Six Intended Delivery Date being the number of years, with two decimals, between the Leonardo Six Intended Delivery Date and the final Repayment Date. |
|
(ii) |
For avoidance of doubt, in case of discrepancy between this Clause 8.5 (Additional Premium) and the relevant provision of the SACE Insurance Policy, the SACE Insurance Policy shall prevail.
65
|
no later than the earlier of (x) 30 days from the date of issuance of the relevant addendum to the SACE Insurance Policy and (y) the Drawdown Date in respect of the first Advance under Tranche B, an amount equal to $2,483,946.67, corresponding to fifteen per cent (15%) of the Tranche B Premium; and |
|
no later than the Drawdown Date in respect of the first Advance under Tranche B, an amount equal to $14,075,697.77, corresponding to eighty-five per cent (85%) of the Tranche B Premium. |
|
The Borrower has requested, and the Tranche B Lenders have agreed to finance the payment of one hundred per cent. (100%) of the Tranche B Premium to the Borrower on the first Drawdown Date under Tranche B, it being agreed that: |
|
the amount referred to in paragraph (a)(i) above shall, as applicable, be reimbursed to the Borrower or paid to SACE; and |
|
the amount referred to in paragraph (a)(ii) above shall be paid to SACE, |
and upon notification by SACE to the SACE Agent and the Borrower of the amount of the Tranche B Premium.
|
Consequently, the Borrower hereby irrevocably instructs the Agent on behalf of the Tranche B Lenders to: |
|
reimburse to the Borrower or pay to SACE, as applicable, the amount of the Tranche B Premium referred to in paragraph (a)(i) above; and |
|
pay to SACE the amount of the Tranche B Premium referred to in paragraph (a)(ii) above, |
no later than the first Drawdown Date under Tranche B in accordance with paragraphs (b)(ii) and (b)(iii) of Clause 2.1 (Amount of facility) of this Agreement.
|
The Tranche B Premium financed by part of Tranche B will be repayable in any event by the Borrower to the Tranche B Lenders in the manner specified in Clause 5 (Repayment) and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan. |
66
such notice that the remaining Tranche B Commitments shall be deemed to be cancelled. The Borrower acknowledges, for the avoidance of doubt, that the shortfall (if any) to be paid to the Builder at the Delivery Date shall be funded and paid directly by the Borrower to the Builder.
|
To the extent the Borrower is entitled to the Tranche B Refund, SACE shall transfer the Tranche B Refund as soon as practicably possible to the SACE Agent who shall as soon as practicably possible following receipt thereof transfer such amount to the Borrower. The Borrower hereby acknowledges that SACE shall not be liable to pay interest to the Borrower on the amount of the Tranche B Refund. |
|
Except as set out in paragraph (e) and (g) above, no part of the Tranche B Premium is refundable to any Obligor. |
|
In no event shall the SACE Agent be liable for any refund of the Tranche B Premium to be made by SACE or for the calculation of any Refund and/or withholding thereof. |
|
9 |
The following fees shall be paid to the Agent by the Borrower as required hereunder:
|
(i) |
[*] per cent. ([*]%) of which is payable on the date of the Original Facility Agreement; and |
67
|
(ii) |
[*] per cent. ([*]%) of which is payable four years prior to the Intended Delivery Date, |
|
(i) |
from the date of the Original Facility Agreement to and including 31 December 2017, [*] per cent. ([*]%) per annum; |
|
(ii) |
from 1 January 2018 to and including 31 December 2019, [*] per cent. ([*]%) per annum; |
|
(iii) |
from 1 January 2020 to and including 30 September 2020, [*] per cent. ([*]%) per annum; and |
|
(iv) |
from 1 October 2020 to and including the Delivery Date, [*] per cent ([*]%) per annum, |
and calculated on the undrawn amount of the Original Maximum Loan Amount prior to the date of this Agreement and thereafter of the Amended Maximum Loan Amount and payable in arrears on the date falling six (6) months after the date of the Original Facility 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 Delivery Date, or the date of receipt by the Agent of the written cancellation notice sent by the Borrower as described in Clause 16.1 (Cancellation), whichever is the earliest, such commitment fee to be calculated on the actual number of days elapsed divided by three hundred and sixty (360). For the purpose of the computation of the periodical commitment fee payable to the Lenders, the Original Maximum Loan Amount is assumed to be eight hundred and sixty-eight million, one hundred and eight thousand, one hundred and eight Dollars and eleven Cents ($868,108,108.11) and the Amended Maximum Loan Amount is assumed to be one billion, one hundred and forty-three million, seven hundred and twelve thousand, seven hundred and eight Dollars and eighty-seven Cents ($1,143,712,708.87);
|
(c) |
|
(i) |
[*] payable on the date of the Original Facility Agreement and on or before each anniversary date thereof until the Delivery Date; and |
|
(d) |
for the SACE Agent an Agent structuring fee in the amount and payable at the time separately agreed in writing between the SACE Agent and the Borrower. |
|
10 |
|
10.1 |
|
(a) |
68
"Protected Party" means a Secured Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document;
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Secured Party under Clause 10.2 (Tax gross-up) or a payment under Clause 10.3 (Tax indemnity).
|
10.2 |
|
(a) |
Each Obligor shall make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law. |
69
|
10.3 |
|
(b) |
|
(i) |
|
(B) |
under the law of the jurisdiction in which that Lender's Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Secured Party; or
|
(iii) |
with respect to the Taxes in the nature of a branch profits tax imposed by Section 884(a) of the Code that is imposed by any jurisdiction described in paragraph (b)(i)(B) above. |
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 10.3 (Tax indemnity), notify the Agent. |
|
10.4 |
If an Obligor makes a Tax Payment and the relevant Creditor Party determines that:
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and |
|
(b) |
that Creditor Party has obtained, retained and utilised that Tax Credit, |
the Creditor Party shall pay an amount to the Obligor which that Creditor Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
70
|
10.5 |
The Borrower shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
10.6 |
71
requested in connection with such Secured Party's VAT reporting requirements in relation to such supply.
|
10.7 |
|
10.8 |
FATCA Deduction |
|
10.9 |
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party: |
|
(i) |
|
(A) |
a FATCA Exempt Party; or |
|
(B) |
not a FATCA Exempt Party; |
72
|
(b) |
If a Party confirms to another Party pursuant to paragraph (i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
|
(i) |
any law or regulation; |
|
(ii) |
any fiduciary duty; or |
|
(iii) |
any duty of confidentiality. |
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
|
(i) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or |
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation. |
|
(f) |
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower. |
|
(h) |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above |
73
without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
(i) |
CDP confirms, and the Borrower acknowledges, that as at the date of this Agreement CPD is a FATCA Exempt Party. |
|
10.10 |
|
(i) |
any of the Lenders incurs a cost as a result of its performing its obligations under this Agreement and/or its making available its Commitment hereunder; or |
|
(iii) |
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 |
then the Borrower shall 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.
|
(b) |
This Clause 10.10 (Increased Costs) does not apply to the extent any increased cost is: |
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor; |
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party; |
|
(iv) |
attributable to the wilful breach by the relevant Creditor Party or its Affiliates of any law of regulation. |
74
In this Clause 10.10 (Increased Costs), a reference to a "Tax Deduction" has the same meaning given to the term in Clause 10.1 (Definitions).
|
10.11 |
The Borrower undertakes to pay to the Agent, upon demand, all costs and expenses, duties and fees, including but without limitation pre-agreed legal costs (which, for avoidance of doubt are exclusive of VAT and disbursements) out of pocket expenses and travel costs, reasonably incurred by the Italian Authorities, the Joint Mandated Lead Arrangers and the Lenders (but not including any bank which becomes a Lender after the date of the Original Facility Agreement) 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 Agent or 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 (provided that such insurance costs are not to exceed ten thousand Dollars ($10,000)) and the fees and expenses of the Italian Authorities (including the fees and expenses of its legal advisers) payable by the Joint Mandated Lead Arrangers to the Italian Authorities, 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 and the Italian Authorities 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 investigation of any potential Event of Default, 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 or in the opinion of the Agent desirable by the acts of, or failure to act on the part of, the Borrower.
|
10.12 |
The Borrower undertakes to pay to the Agent, upon demand, any costs incurred by the Lenders and/or the Italian Authorities in funding the Loan in the event that the Delivery Date is later than the Intended Delivery Date unless the Borrower has given the Agent at least three (3) Business Days' notification of such delay in the Delivery Date.
75
|
10.13 |
To the extent that this Clause 10 (Taxes, Increased Costs, Costs and Related Charges) imposes obligations or restrictions on a Secured Party, such obligations or restrictions shall not apply to SACE and SACE shall have no obligations hereunder nor be constrained by such restrictions.
|
11 |
|
11.1 |
The following applies in relation to the time at which representations and warranties are made and repeated:
|
11.2 |
The Borrower represents and warrants to each of the Secured Parties that:
|
(b) |
the Borrower has an authorised share capital of 12,000 common shares of par value $1 each all of which have been issued to the Shareholder; |
|
(c) |
the legal title to and beneficial interest in the equity in the Borrower is held free of any security (other than pursuant to the Shares Security Deed) or any other claim by the Shareholder; |
|
(d) |
none of the equity in the Borrower is subject to any option to purchase, pre-emption rights or similar rights; |
76
|
(g) |
the entry into and performance of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby do not and will not conflict with: |
|
(i) |
|
(ii) |
|
(iii) |
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 Security Interest on the Borrower or its assets pursuant to the provisions of any such agreement or document, except for Security Interests which qualify as Permitted Security Interests with respect to the Borrower;
|
(h) |
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 Ship and not already obtained by the Borrower; |
|
(i) |
it is disregarded as an entity separate from its owner for U.S. federal Tax purposes; |
77
|
(s) |
the Borrower is the sole legal and beneficial owner of all rights and interests which each of the Pre-delivery Contracts creates in favour of the Borrower; |
|
(u) |
|
(i) |
|
(ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person; or |
|
(iii) |
78
"establishment" (as that term is used in Article 2(h) of the Regulation) in European Union country;
|
(dd) |
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; |
79
|
(ii) |
the Borrower does not have a place of business in any country (except as already disclosed) other than that of its Original Jurisdiction; |
|
(kk) |
|
(i) |
is in compliance with all Environmental Laws and Environmental Approvals provided that any non-compliance would not be expected to result in a Material Adverse Effect; |
|
(ll) |
each of the Pre-delivery Contracts constitutes legal, valid, binding and enforceable obligations of the Builder and the relevant Refund Guarantor respectively; |
|
(mm) |
neither the Borrower, the Builder or the relevant Refund Guarantor has waived any of their respective rights under any Pre-delivery Contract; |
|
(nn) |
the Borrower has read and acknowledged the principles provided under the Code of Ethics and Model; |
|
(oo) |
the Borrower has implemented adequate internal procedures aimed at preventing commission of crimes provided under Legislative Decree 231/01; |
|
(pp) |
no litigation is pending against the Borrower in relation to administrative liability provided under Legislative Decree 231/01; |
|
(qq) |
no final judgment under Legislative Decree 231/01 has been issued against the Borrower and no plea bargain (also known as patteggiamento under Italian law) has been agreed by the Borrower pursuant to article 444 of the Italian code of criminal procedure; and |
|
(rr) |
neither the Borrower nor any of its assets are subject to any precautionary measure provided under Legislative Decree 231/01. |
|
11.3 |
The Borrower further represents and warrants to each of the Secured Parties on the Delivery Date that:
|
(a) |
the Ship is in its absolute and unencumbered ownership save as contemplated by the Finance Documents; |
|
(b) |
the Ship is registered in its name under the laws and flag of the Maritime Registry; |
80
|
(c) |
the Ship is classed with the highest classification available for a Ship of its type free of all recommendations and qualifications with Lloyd's Register, RINA or Bureau Veritas; |
|
(e) |
the Ship is in compliance with the ISM Code, the ISPS Code and Annex VI as they relate to the Borrower, any Approved Manager and the Ship; |
|
(f) |
the Ship is insured in accordance with the provisions of Clause 14 (Insurance Undertakings) and in compliance with the requirements therein in respect of such insurances; |
|
(g) |
the Ship is managed by the Approved Manager and, in the event that the Approved Manager is not a member of the Group, on and subject to the terms set out in the Management Agreement; |
|
(l) |
except for: |
|
(i) |
the filing of UCC-1 Financing Statements in such jurisdictions as the Security Trustee may reasonably require; |
|
(ii) |
the recording of the Mortgage with the relevant Maritime Registry; and |
|
(iii) |
the registration of the Ship under an Approved Flag, |
81
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 Ship and not already obtained by the Borrower.
|
12 |
|
12.1 |
The Borrower undertakes with each Secured Party to comply with the following undertakings during the Security Period:
|
12.2 |
The Borrower will provide to the Agent for the benefit of the Lenders and SACE (or will procure the provision of):
|
(e) |
any reasonably requested information which the Agent requests about any interest or right of any kind which the Borrower has at any time to, in or in connection with, each of the Pre-delivery Contracts or in relation to any matter arising out of or in connection with any Pre-delivery Contract including the progress of the construction of the Ship, any material dispute, termination, cancellation or suspension, material breach of or under any Pre-delivery Contract or material claim proposed or actual amendments (excluding Minor Modifications) of or under any Pre-delivery Contract, and any material litigation, arbitration, proceeding or investigation |
82
in relation to the Borrower and of any other event or matter affecting a Pre-delivery Contract which has or is reasonably likely to have a Material Adverse Effect.
All accounts required under this Clause 12.2 (Information) shall be prepared in accordance with GAAP and shall fairly represent the financial condition of the relevant company.
|
12.3 |
Upon the request of the Agent, the Borrower shall provide to the Agent information as may be reasonably requested by the Lenders for the purposes of monitoring that the Borrower conducts its operations in all material respects in accordance with the Equator Principles.
|
12.4 |
No payments made by the Borrower, the Shareholder, the Guarantor or any Approved Manager which is a member of the Group in respect of amounts due under this Agreement or any Finance Document shall be funded out of funds of Illicit Origin and none of the sources of funds to be used by the Borrower, the Shareholder, the Guarantor or any Approved Manager which is a member of the Group in connection with the construction of the Ship or its business shall be of Illicit Origin.
|
12.5 |
No Prohibited Payment shall be made or provided, directly or indirectly, by (or on behalf of) the Borrower, the Shareholder, the Guarantor or any of their affiliates, officers, directors or any other person acting on its behalf to, or for the benefit of, any authority (or any official, officer, director, agent or key employee of, or other person with management responsibilities in, of any authority) in connection with the Ship, this Agreement, the Finance Documents and/or the Pre-delivery Contracts.
|
12.6 |
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.
|
12.7 |
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 relevant Drawdown Date the Borrower will procure the filing or registration within applicable time limits of each Finance Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Finance Documents.
|
12.8 |
The Borrower will not create or permit to subsist any Security Interest on the whole or any part of its present or future assets, except for the following:
83
|
(a) |
Security Interests created with the prior consent of the Agent; or |
|
12.9 |
Except in the case of a sale of the Ship if the completion of the sale is contemporaneous with prepayment of the Loan in accordance with the provisions of Clause 16.3 (Mandatory prepayment – Sale and Total Loss) and except for charters and other arrangements complying with Clause 13.1 (Pooling of earnings and charters) the Borrower shall not without the consent of the Majority Lenders and SACE, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, (i) sell, transfer, lease or otherwise dispose of the Ship or any of the Ship's equipment except in the case of items (a) being replaced (by an equivalent or superior item) or renewed or (b) that are being disposed of in the ordinary course of business provided that in the case of both (a) and (b) the net impact does not reduce the value of the Ship and, in the case of (b), the value of any such disposals during the term of this Agreement do not, in aggregate, exceed ten million Dollars ($10,000,000) (ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; (iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set off or made subject to a combination of accounts, or (iv) enter into any other preferential arrangement having the same effect in circumstances where the arrangement or transaction is entered into primarily as a method of raising financial indebtedness or of financing the acquisition of an asset.
|
12.10 |
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 Ship, or change its place of business to any country other than that of its Original Jurisdiction, 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.
|
12.11 |
Except with the prior consent of the Lenders and SACE and subject to compliance with all necessary "know your customer" requirements, 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.
|
12.12 |
The Borrower will do all such things as are necessary to maintain its company 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.
84
|
12.13 |
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.
|
12.14 |
The following restrictions shall apply:
|
(b) |
|
(i) |
any and all indebtedness (and in particular with any other Obligor) is at all times fully subordinated to the Finance Documents and the obligations of the Borrower hereunder; and |
Upon the occurrence of an Event of Default, the Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing such indebtedness. In this paragraph (b) "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 Secured Parties under this Agreement and the other Finance 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 Ship, her Earnings or Insurances or the Borrower and it will not compete with the Secured 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 Ship, her Earnings or Insurances.
|
12.15 |
The Borrower shall not:
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness; |
85
|
(c) |
|
(i) |
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement; and |
|
(d) |
enter into any transaction on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms' length; or |
|
(e) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks. |
|
12.16 |
No Obligor shall do (or fail to do) or cause or permit another person to do (or omit to do) anything which is likely to:
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents; |
|
(c) |
cause any Transaction Document to cease to be in full force and effect; |
|
(d) |
cause any Security Interest to rank after, or lose its priority to, any other Security Interest; and |
|
(e) |
|
12.17 |
|
(a) |
Subject to paragraph (b) below, the Borrower shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital other than dividends and distributions that are transferred to the Shareholder or the Guarantor provided that no Event of Default has occurred or is continuing or would result from the payment of any dividend. |
|
(b) |
During the Deferral Period, the Borrower shall not, and shall procure that the Guarantor, the Shareholder and the Holding shall not: |
|
(i) |
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); |
|
(ii) |
|
(iii) |
make any repayment of any kind under any shareholder loan; or |
|
(iv) |
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or repay any of its share capital or resolve to do so, |
except that (A) any Obligor other than the Guarantor may pay dividends and other distributions, directly or indirectly, to the Guarantor for the purpose of providing liquidity to
86
the Guarantor to enable the Guarantor to satisfy payment obligations for which the Guarantor is an obligor and (B) any Obligor may pay dividends in respect of the Tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated Tax returns for each relevant jurisdiction of the Group or the Holding or holder of the Guarantor's capital stock with respect to income taxable as a result of any member of the Group or the Holding being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of the Group, (C) the Guarantor and the Holding may pay dividends and other distributions (x) in respect of a conversion, exchange, or repurchase of convertible or exchangeable notes and any conversion of preference shares to ordinary shares in connection therewith, provided that the cash portion of a repurchase of convertible or exchangeable notes is limited to the amount of interest that would otherwise be payable through maturity on the amount of such convertible or exchangeable notes being repurchased plus any amount in lieu of fractional shares, and (y) to the extent contractually owed to holders of equity in the Guarantor or the Holding and (D) the Guarantor may pay dividends and other distributions to the Holding for the purposes of providing cash to the Holding for the payment of any Tax payable in connection with the Holding's equity plan,
provided that the actions in paragraphs (B) and (C) above shall only be permitted if there is no Event of Default which is continuing under this Agreement and no Event of Default would arise from the payment of such dividend.
|
12.18 |
Otherwise than in the ordinary course of business in its ownership and operation of the Ship following the Delivery Date, the Borrower will not make any loan or advance or extend credit to any person, firm or corporation (other than as permitted pursuant to paragraph (a) of Clause 12.15 (Investments)), 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.
|
12.19 |
The Borrower will not:
|
(a) |
acquire any equity, share capital, assets or obligations of any corporation or other entity; or |
|
(b) |
permit any of its shares to be directly held other than by the Shareholder. |
|
12.20 |
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, the Interest Make-Up Agreement or the SACE Insurance Policy or securing to the Secured Parties the full benefit of the rights, powers and remedies conferred upon the Secured Parties or any of them in any such Transaction Document the Interest Make-Up Agreement or the SACE Insurance Policy.
|
12.21 |
The Borrower shall not modify, revoke or withhold the payment instructions set out in Clause 4.1 (Borrower's irrevocable payment instructions) without the agreement of the Builder (in the case of paragraph (aparagraphs (b)(i), (d)(i) and (e)(i) of Clause 4.1 (Borrower's irrevocable payment instructions) only), the Agent, SACE and the Lenders.
87
|
12.22 |
|
(a) |
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of the Original Facility Agreement; |
|
(ii) |
any change in the status of the Borrower after the date of the Original Facility Agreement; or |
|
(iii) |
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 paragraph (a)(iii) of Clause 12.22 ("Know your customer" checks), 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 or the Lenders (acting reasonably) require any additional documents to supplement those already provided, 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 paragraph (iii) of Clause 12.22 ("Know your customer" checks), on behalf of any prospective new Lender) in order for the Agent and, such 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.
|
12.23 |
|
(a) |
|
(i) |
observe and perform all its obligations and meet all its liabilities under or in connection with each Pre-delivery Contract; |
|
(ii) |
use its best endeavours to ensure performance and observance by the other parties of their obligations and liabilities under each Pre-delivery Contract; |
|
(iii) |
take any action, or refrain from taking any action, which the Agent (always acting reasonably and in good faith towards the Borrower) may specify in connection with any material breach, or possible future material breach, of a Pre-delivery Contract by the Borrower or any other party or with any other matter which arises or may later arise out of or in connection with a Pre-delivery Contract which is or could reasonably be expected to become materially prejudicial to the interests, rights or position of the Lenders; and |
88
|
(iv) |
use its best endeavours to ensure that all interests and rights conferred by each Pre-delivery Contract remain valid and enforceable in all respects and retain the priority which they were intended to have. |
|
(b) |
The Pre-delivery Contracts constitute legal, valid and binding and enforceable obligations of the Builder and the relevant Refund Guarantor respectively, and accordingly the Borrower shall not: |
|
(i) |
waive, cancel or suspend any Pre-delivery Contract or assign or transfer any of its rights thereunder, and shall comply with any authorisations for the purposes of the Pre-delivery Contracts; |
The Borrower will, therefore, submit to the Agent any proposals for any such modification and SACE and the Agent on behalf of the Lenders will indicate in a timely manner whether the modification proposed will allow the Loan to be maintained. The Borrower also undertakes to notify the Agent of any change in the Intended Delivery Date as soon as practicable after each change has occurred.
The Borrower shall notify the Agent promptly, and in any event within ten (10) Business Days (as defined in limb (a) of the definition of Business Day) of any changes to the Shipbuilding Contract (other than Minor Modifications arising in the general day to day construction period for a vessel of the type of the Ship) and provide copies of the same to the Agent.
89
|
(d) |
The Borrower shall ensure that at all times during construction, the Ship is insured in accordance with the provisions of Article 23 of the Shipbuilding Contract. |
|
(e) |
In the event that a previously issued Refund Guarantee cannot be extended or replaced, and pursuant to the terms of the Shipbuilding Contract the Builder has chosen to replace such Refund Guarantee with an Acceptable Deposit, the Account shall be opened and such Acceptable Deposit shall be transferred to the Account which shall be pledged in favour of the Lenders, the Joint Mandated Lead Arrangers, the Security Trustee, the Agent and the SACE Agent and shall be deemed to be Pre-delivery Security. For the avoidance of doubt: |
|
(i) |
any amount of the Acceptable Deposit shall be transferred to and from the Account upon the terms of the Account Pledge and the conditions relating to the mechanics of the Account and Acceptable Deposit shall be set out in the Account Pledge; and |
|
(ii) |
upon the instructions of the Beneficiaries (as defined in the Account Pledge), the Account Bank shall close the Account upon delivery of the Ship provided no potential Event of Default or Event of Default has occurred. |
|
12.24 |
The Borrower shall:
|
(a) |
provide the Agent with a copy of all FOREX Contracts together with all relevant details within ten (10) days of their execution; and |
|
(b) |
inform the Agent, when requested by the Agent, of its intended hedging policy for purchasing Euro with Dollars. |
The Agent shall inform the Lenders within ten (10) days of receipt of such information from the Borrower.
|
12.25 |
The Borrower shall:
|
(a) |
|
(i) |
in all material respects, all laws and regulations relating to it and its business generally; and |
including the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals which are applicable to it; and |
90
|
12.26 |
Most favoured nations |
|
(a) |
The Borrower shall procure that if at any time after the date of the Original Facility Agreement the Guarantor enters into any financial contract or financial document relating to any Financial Indebtedness with or which has the support of any export credit agency and which contains pari passu provisions or cross default provisions which are more favourable to the lenders than those contained in paragraph (l) of Clause 11.2 (Continuing representations and warranties) and Clause 18.6 (Cross default) respectively, the Borrower or the Guarantor shall immediately notify the Agent of such provisions and the relevant provisions contained in this Agreement shall be deemed amended so that such more favourable pari passu provisions or cross default provisions are granted to the Creditor Parties pursuant to this Agreement. |
|
(b) |
The Borrower undertakes that if at any time after the date of this Agreement, it or any other member of the Group is required to grant additional security in relation to a financial contract or financial document relating to any existing Financial Indebtedness: |
|
(i) |
with the support of any export credit agency (excluding any extensions, increases or changes to the terms and conditions thereof), such security shall be granted on a pari passu basis to the Lenders (and the Security Trustee agrees to enter and/or procure the entry by the relevant Secured Parties into such intercreditor documentation to reflect such pari passu ranking (in form and substance reasonably satisfactory to the Secured Parties) as may be required in connection with such arrangements); or |
|
12.27 |
|
(a) |
|
(i) |
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred by the Group (including, for the avoidance of doubt, inter-company loans); |
|
(ii) |
no non-arm's length disposals of any asset relating to the Group fleet shall be made; and |
|
(iii) |
no additional Security Interests securing existing Financial Indebtedness will be created or permitted to subsist by any Obligor (unless the Lenders benefit from this new security on a pari passu basis), |
91
during the Deferral Period.
|
(b) |
The restrictions in paragraph (a) of Clause 12.27 (New capital raises or financing) above shall not apply in relation to: |
|
(i) |
any refinancing of any bond issuance of, or loan entered into by, the Group (A) which matures during such period or (B) where not maturing during such period, shall be on terms which include any of the following (evidence of which shall be provided to the Agent by the Guarantor) resulting, when taken as a whole, in an improvement of the ability of the Obligors to meet their obligations under the Finance Documents: an extension of the repayment terms; a decrease in the interest rate; or the conversion of such Financial Indebtedness from secured to unsecured or first to second priority; |
|
(ii) |
any debt or equity issuance provided prior to 31 December 2022 to provide the Group with crisis and/or recovery related funding in respect of the impact of the Covid-19 pandemic; |
|
(iii) |
any debt or equity issuance being raised on or after 31 December 2022 to support the Group with the impact of the Covid-19 pandemic, made with the prior written consent of SACE; |
|
(iv) |
any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such period (including without limitation any costs incurred by the owner of a cruise ship in connection therewith); |
|
(v) |
any debt or equity issuance being raised to finance capital expenditure for projects which are already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been (or will be) listed in the Information Package submitted to the Agent prior to the 2021 Deferral Effective Date; |
|
(vi) |
any extension or renewal of revolving credit facilities, and made with the prior written consent of SACE if any additional security is to be granted; |
|
(vii) |
any new debt or equity issuance otherwise agreed by SACE; or |
|
(viii) |
any inter-company loan or operating arrangement which from an accounting perspective has the effect of an intercompany loan (an "intercompany arrangement") which: |
|
(A) |
is existing as at the date of the February 2021 Amendment and Restatement Agreement; |
|
(B) |
is made among any Group members or any Group member with the Holding provided that: |
|
(1) |
any inter-company arrangement is made solely for the purpose of regulatory or Tax purposes carried out in the ordinary course of business and on an arm's length basis; and |
|
(2) |
the aggregate principal amount of any inter-company arrangements outstanding pursuant to this paragraph (2)(b)(viii)(B) of Clause 12.27 |
92
(New capital raises or financing) does not exceed [*] ($[*]) at any time; or
|
(C) |
has been approved with the prior written consent of SACE; |
|
(ix) |
any Permitted Security Interest; |
|
(x) |
any Security Interest otherwise approved with the prior written consent of SACE; and |
|
(xi) |
any Financial Indebtedness incurred in the ordinary course of business which in the aggregate does not exceed USD [*] during any twelve-month period; and |
|
(xii) |
without prejudice to Clauses 12.11 (Mergers) and 12.15 (Investments) and clause 11.13 (No merger) of the Guarantee, the issuance of share capital by any Group member to another Group member. |
|
12.28 |
|
(a) |
The Borrower shall not behave so as to cause any of the following persons to violate the principles set out in the Code of Ethics and/or Model: |
|
(i) |
persons who are representatives, administrators or managers of CDP or of any of its organizational units with financial and functional independence; |
|
(ii) |
persons who are managed or supervised by one of the persons referred to in paragraph (i) above; or |
|
(iii) |
external advisors of CDP. |
|
(b) |
The Borrower shall maintain adequate internal procedures aimed at preventing liabilities provided under Legislative Decree 231/01. |
|
13 |
|
13.1 |
The Borrower will not without the prior written consent of the Agent or SACE enter into in respect of the Ship (such consent for the purposes of paragraph (e) of Clause 13.1 (Pooling of earnings and charters) shall not be unreasonably withheld or delayed), nor permit to exist at any time following the Delivery Date:
93
|
(c) |
any charter whereunder two (2) months' charterhire (or the equivalent thereof) is payable in advance in respect of the Ship; or |
|
(d) |
any charter of the Ship or employment which, with the exercise of options for extension, could be for a period longer than [*]; or |
|
(i) |
such time charter is assigned to the Security Trustee and the Borrower agrees to: |
|
(A) |
serve a notice of assignment of any time charter, the Earnings therefrom and any guarantee of the charterer's obligations on the time charterer and any time charter guarantor; and |
|
(B) |
use commercially reasonable endeavours to obtain an acknowledgement of such assignment, |
and each of the notice of assignment and acknowledgement of assignment being substantially in the form appended to the General Assignment;
|
(iii) |
during the term of such time charter, the Ship continues to be managed by the existing Approved Manager. |
|
13.2 |
The Borrower will not as from the Delivery Date:
|
(a) |
permit any person other than an Approved Manager to be the manager of, including providing crewing services to, the Ship, at all times acting upon terms approved in writing by the Agent |
94
and having entered into (in the case of the Approved Manager) an Approved Manager's Undertaking; and
|
13.3 |
The Borrower shall in respect of the Ship take all reasonable precautions as from the Delivery Date 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 Ship in any other jurisdiction in which the Ship shall trade (a "Relevant Jurisdiction") where the Ship trades in the territorial waters of the United States of America or a Relevant Jurisdiction.
|
13.4 |
The following shall apply in relation to the valuation of the Ship:
|
13.5 |
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.
|
13.6 |
From the Delivery Date until the end of the Security Period at its own expense the Borrower will keep the Ship in a good and efficient state of repair so as to maintain it to the highest classification notation available for the Ship of its age and type free of all recommendations and qualifications with Bureau Veritas. On the Delivery Date and annually thereafter, it will furnish to the Agent a statement by such classification society that such classification notation
95
is maintained. It will comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Ship 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 Ship. It will not make any substantial modifications or alterations to the Ship or any part thereof which would reduce the market and commercial value of the Ship determined in accordance with Clause 13.4 (Valuation of the Ship).
|
13.7 |
The Borrower will:
|
13.8 |
The Borrower will comply, or procure that the Approved 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:
|
(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 Ship a copy of any such Document of Compliance and the original of any such Safety Management Certificate. |
|
13.9 |
The Borrower will comply, or procure that the Approved 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 Ship the original of the International Ship Security Certificate required by the ISPS Code; and |
96
|
(b) |
keep, or procure that there is kept, on board the Ship a copy of the ship security plan prepared pursuant to the ISPS Code. |
|
13.10 |
The Borrower will 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 Ship's master and crew are familiar with, and that the Ship complies with, Annex VI; and |
|
(b) |
maintain for the Ship 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. |
|
13.11 |
The Borrower shall:
|
13.12 |
The Borrower shall give notice to the Agent promptly and in reasonable detail upon the Borrower or any other Obligor becoming aware of:
|
(a) |
accidents to the Ship involving repairs the cost of which will or is likely to exceed [*]; |
|
(b) |
|
(d) |
any writ or claim served against or any arrest of the Ship or the exercise of any lien or purported lien on the Ship, her Earnings or Insurances; |
|
(e) |
the Ship 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; |
97
|
(f) |
it becoming impossible or unlawful for it to fulfil any of its obligations under the Finance Documents; and |
|
(g) |
anything done or permitted or not done in respect of the Ship by any person which is likely to imperil the security created by the Finance Documents. |
|
13.13 |
The Borrower shall promptly pay and discharge:
|
(ii) |
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 paragraph (b): |
|
(B) |
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 |
98
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 paragraph (b) 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,
provided always that the Borrower shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested liabilities which, either individually or in aggregate, exceed [*] shall be forthwith provided to the Agent. If the Ship 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.
|
13.14 |
The Borrower shall 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 Ship 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.
|
13.15 |
The Borrower shall maintain the type of the Ship as at the Delivery Date and not put the Ship into the possession of any person 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 Ship or her Earnings for the cost of such work or for any other reason (or the Borrower is able to demonstrate to the reasonable satisfaction of the Agent that the Borrower or the relevant Group company has set aside and will have funds readily available for payment when due of the cost of the work (to the extent not fully covered by insurance proceeds in the case of a partial loss)).
|
13.16 |
The Borrower shall maintain the registration of the Ship 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.
|
13.17 |
The Borrower shall comply with all Environmental Laws, obtain, maintain and ensure compliance with all requisite Environmental Approvals, and implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
13.18 |
The Borrower shall keep the Mortgage registered against the Ship as a valid first preferred mortgage, carry on board the Ship a certified copy of the Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of the Ship a framed printed notice stating that the Ship is mortgaged by the Borrower to the Security Trustee.
99
|
13.19 |
Each Obligor shall, (through the Guarantor), promptly upon becoming aware of the same, inform the Agent in writing of:
|
(a) |
any Environmental Claim which is likely to result in a Material Adverse Effect against any member of the Group which is current, pending or threatened; and |
|
13.20 |
In the event of hostilities in any part of the world (whether war is declared or not), the Borrower shall not cause or permit the Ship to enter or trade to any zone which is declared a war zone by the Ship's war risks insurers unless:
|
(a) |
the prior written consent of the Security Trustee has been given; and |
|
(b) |
the Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require. |
|
13.21 |
Poseidon Principles |
The Borrower shall, upon the request of the Agent and at the cost of the Borrower, on or before 31st July in each calendar year, supply to the Agent all information necessary in order for the Lenders to comply with their obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI and any Statement of Compliance, in each case relating to the Ship for the preceding calendar year provided always that, for the avoidance of doubt, such information shall be "Confidential Information" for the purposes of Clause 33 (Confidentiality) but the Borrower acknowledges that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the Lenders' portfolio climate alignment.
|
14 |
|
14.1 |
The undertakings in this Clause 14 (Insurance Undertakings) remain in force on and from the Delivery Date and throughout the rest of the Security Period except as the Agent may otherwise permit.
|
14.2 |
The Borrower shall insure the Ship in its name and keep the Ship 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 (x) [*] per cent. ([*]%) of the amount of the Loan; and (y) the full market and commercial value of the Ship determined in accordance with Clause 13.4 (Valuation of the Ship) from time to time through internationally recognised independent first class insurance companies, underwriters, war risks and protection and indemnity
100
associations acceptable to the Agent, acting reasonably, in each instance on terms and conditions approved by the Agent including as to deductibles but at least in respect of:
|
(b) |
war risks (including terrorism, piracy, blocking and trapping and protection and indemnity war risks) up to the insured amount; |
|
(e) |
when and while the Ship is laid-up, in lieu of hull insurance, normal port risks; and |
|
(f) |
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 Secured 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 Secured Parties in similar terms mutatis mutandis to the relevant provisions of the General Assignment.
|
14.3 |
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 [*] per cent. ([*]%) 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).
|
14.4 |
If the Ship 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 Ship 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:
101
|
(a) |
to pay any additional premiums required to maintain full standard protection and indemnity cover for oil pollution up to the highest limit available to it for the Ship in the market; |
|
14.5 |
102
|
14.6 |
The Borrower will procure that each of the relevant brokers and associations furnishes the Agent with a letter of undertaking in the standard form available in the relevant insurance market or otherwise 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 Ship.
|
14.7 |
The Borrower shall punctually pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Ship and to produce all relevant receipts when so required by the Agent.
|
14.8 |
The Borrower shall notify the Agent of the renewal of the obligatory insurances at least five (5) days before the expiry thereof and shall 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 Ship at least two (2) days before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default.
|
14.9 |
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.
|
14.10 |
The Borrower will furnish the Agent from time to time on request with full information about all Insurances maintained on the Ship and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed.
|
14.11 |
The Borrower shall not make or agree to any variation in the terms of any of the Insurances on the Ship 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 Ship 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.
|
14.12 |
The Borrower shall not settle, compromise or abandon any claim in respect of any of the Insurances on the Ship other than a claim of less than [*] Dollars ($[*]) or the equivalent in any other currency and not being a claim arising out of a Total Loss.
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|
14.13 |
The Borrower shall apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Ship for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance monies shall have been received.
|
14.14 |
The Agent shall be entitled, immediately prior to the Delivery Date and thereafter no more frequently than annually on renewals but also additionally at any time when there is a proposed change of underwriters or the terms of any Insurances, 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 deem necessary, it being hereby specifically agreed that the Borrower shall reimburse the Agent on demand for the costs and expenses incurred by the Agent in connection with the instruction of such advisers subject to a limit of ten thousand Dollars ($10,000) at the time of delivery of the Ship or in the event of a change of underwriters or of terms of any Insurances and otherwise ten thousand Dollars ($10,000) annually thereafter.
|
15 |
|
15.1 |
If, upon receipt of a valuation of the Ship in accordance with Clause 13.4 (Valuation of the Ship), the Security Value shall be less than the Security Requirement, the Agent may give notice to the Borrower requiring that such deficiency be remedied and then the Borrower shall (unless the Ship has become a Total Loss) either:
Clauses 15.2 (Costs) and 15.4 (Documents and evidence) and paragraph (c) of Clause 16.2 (Voluntary prepayment) shall apply to prepayments under paragraph (a) of Clause 15.1 (Security Shortfall).
|
15.2 |
All costs in connection with the Agent obtaining any valuation of the Ship referred to in Clause 13.4 (Valuation of the Ship), and obtaining any valuation either of any additional security for the purposes of ascertaining the Security Value at any time or necessitated by the Borrower electing to constitute additional security pursuant to paragraph (b) of Clause 15.1 (Security Shortfall) shall be borne by the Borrower.
104
|
15.3 |
For the purpose of this Clause 15 (Security Value Maintenance), the market value of any additional security provided or to be provided to the Agent shall be determined by the Agent in its absolute discretion without any necessity for the Agent assigning any reason thereto.
|
15.4 |
In connection with any additional security provided in accordance with this Clause 15 (Security Value Maintenance), the Agent shall be entitled to receive such evidence and documents of the kind referred to in Clause 3 (Conditions Precedent) in respect of other Finance Documents as may in the Agent's opinion be appropriate.
|
15.5 |
Any valuation under this Clause 15 (Security Value Maintenance) shall be binding and conclusive as regards the Borrower.
|
15.6 |
|
16 |
|
16.1 |
At any time prior to the end of the Availability Period, the Borrower may give notice to the Agent in writing that it wishes to cancel the whole or any part of the available Commitments in relation to a Tranche whereupon (without penalty to the Borrower but without prejudice to any liabilities of the Borrower including, without limitation, in respect of fees payable or accrued under this Agreement, arising prior to the date of such cancellation) such available Commitments under that Tranche shall terminate upon the date specified in such notice. Any cancellation under this Clause 16.1 (Cancellation) shall reduce the remaining Commitments under that Tranche of the relevant Lenders rateably.
|
16.2 |
105
any prepayment made pursuant to this Clause 16.2 (Voluntary prepayment) is not made on the last day of an Interest Period:
|
(ii) |
for the account of SIMEST, if the Borrower elected a Fixed Interest Rate pursuant to Clause 6.1 (Fixed or Floating Interest Rate), the sum of charges (if any) imposed by SIMEST representing funding or breakage costs of the Italian Authorities as more specifically set out in Clause 20 (Indemnities). |
|
16.3 |
The Borrower shall be obliged to prepay the whole of the Loan if the Ship is sold or becomes a Total Loss:
|
(a) |
in the case of a sale, on or before the date on which the sale is completed by delivery of the Ship to the buyer; or |
|
(b) |
in the case of a Total Loss, on the earlier of the date falling 120 days after the Total Loss Date and the date of receipt by the Agent of the proceeds of insurance relating to such Total Loss. |
|
16.4 |
106
obliged to make available to the Borrower their portion of the Loan to the extent such amounts have not already been drawn). In the event that following such negotiations the Borrower and the Lenders fail to agree on such revised terms, the Borrower shall be obliged to prepay, on demand by the Agent, the outstanding principal amount of the Loan to the extent of the amount covered pursuant to the SACE Insurance Policy. If, during the period while negotiations are on-going pursuant to this paragraph (b) the events described in paragraph (a) of Clause 16.4 (Mandatory prepayment – SACE Insurance Policy) should occur, the Borrower shall be obliged to prepay the Loan in full as required by paragraph (a) of Clause 16.4 (Mandatory prepayment – SACE Insurance Policy).
|
16.5 |
Breach of new covenants or the Principles |
|
(b) |
Save as permitted by Clause 12.27 (New capital raises or financing), if at any time after the 2021 Deferral Effective Date: |
|
16.6 |
If:
107
|
(a) |
prior to the delivery of the Ship it becomes unlawful for the Builder to perform its obligations under the Shipbuilding Contract; |
|
(b) |
prior to the delivery of the Ship any of the events specified in Article 20.2 of the Shipbuilding Contract occurs; |
|
(c) |
prior to the delivery of the Ship there is a repudiation or termination of the Shipbuilding Contract; |
|
(d) |
prior to the delivery of the Ship the Builder ceases to carry on all or a substantial part of its cruise ship building business; or |
|
(e) |
the Ship has not been delivered to, and accepted by, the Borrower by the date specified in Article 8.9 of the Shipbuilding Contract, |
then:
|
(i) |
the Borrower shall promptly notify the Agent upon becoming aware of that event; and |
|
(ii) |
if the Majority Lenders so require, the Agent shall, by not less than 3 Business Days' notice to the Borrower, cancel the Facility and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable. |
|
Mandatory Prepayment in case of refund by SACE to the Borrower of the second instalment of the Additional SACE Premium |
If at any time on or after the Leonardo Six Intended Delivery Date the Borrower receives a refund of the portion of the second instalment of the Additional SACE Premium pursuant to paragraphs (e) and (f) of Clause 8.5 (Additional Premium), the Agent shall declare the part of the Loan that corresponds to that refunded portion, together with any accrued interest thereon, due and payable on demand.
Any prepayment of the whole of the Loan shall be made together with all other sums due under this Agreement (including, without limitation, the compensation calculated in accordance with Clause 16.2 (Voluntary prepayment)).
16.816.9Application of partial prepayment
Amounts prepaid shall be applied in accordance with paragraph (b) of Clause 19.1 (Receipts).
Amounts prepaid may not be reborrowed.
|
17 |
|
17.1 |
Without prejudice to the provisions of Clause 18 (Events of Default) and without this Clause in any way constituting a waiver of terms of payment, all sums due by the Borrower under this
108
Agreement will automatically bear interest on a day to day basis from the date when they are payable until the date of actual payment at a rate per annum equal to the higher of:
|
(a) |
where the Floating Interest Rate is applicable, the aggregate of: |
|
(i) |
|
(ii) |
|
(iii) |
|
(b) |
|
(i) |
the Fixed Interest Rate plus [*] per cent. ([*]%) per annum; and |
|
(ii) |
Overnight LIBOR plus the applicable Margin plus [*] per cent. ([*]%) per annum. |
|
17.2 |
To the extent permitted by applicable law, any such interest will itself bear interest at the above rate if it is due for at least three (3) months and thereafter at three monthly intervals.
|
18 |
|
18.1 |
An Event of Default occurs if any of the events or circumstances described in Clauses 18.2 (Non-payment) to 18.20 (Material Adverse Change) occur.
|
18.2 |
Any Obligor fails to pay when due or (if so payable) on demand any sum payable under a Finance Document or under any document relating to a Finance Document and such failure is not remedied within three (3) Business Days of the due date or (if payable on demand) within three (3) Business Days of receiving the demand.
|
18.3 |
The Borrower fails to comply with the provisions of Clauses 12.8 (Negative pledge), 12.9 (Disposals), 12.11 (Mergers) or 12.18 (Loans and guarantees by the Borrower).
|
18.4 |
109
unless in any such case as aforesaid the Majority Lenders and SACE consider that the failure or material breach is or could reasonably be expected to become materially prejudicial to the interests, rights or position of the Lenders, "Relevant Period" meaning for the purposes of this Clause fifteen (15) days in respect of a remedy period commencing after the date of this Agreement;
|
(c) |
Prior to the delivery of the Ship, any of the parties to the Shipbuilding Contract becomes entitled to terminate or repudiate the Shipbuilding Contract and commences the exercise of their rights to do so. |
|
18.5 |
Any representation, warranty or statement made or repeated in, or in connection with, any Transaction Document or the SACE 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 or misleading when made or would, if repeated at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct.
|
18.6 |
|
(a) |
Any event of default occurs under any financial contract or financial document relating to any Financial Indebtedness of the Borrower; or |
|
(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; or |
110
Principles apply, unless at the time of such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment – sale and total loss) or Clause 16.4 (Mandatory prepayment – SACE insurance policy) has occurred.
|
18.7 |
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 Obligor.
|
18.8 |
A liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer is appointed in respect of any Obligor or in respect of all or any substantial part of the assets of any Obligor.
|
18.9 |
Any corporate action, legal proceeding or other procedure or step is taken in relation to enforcement of any security interests over any assets of the Borrower.
|
18.10 |
|
(b) |
The value of the assets of any Obligor is less than its liabilities (taking into account contingent liabilities). |
|
18.11 |
Any corporate action, legal proceeding, distress, execution, attachment or other process affects the whole or any substantial part of the assets of any Obligor and remains undischarged for a period of thirty (30) days, any step is taken in relation to enforcement of any security interests over any assets of any Obligor (other than the Borrower) or any uninsured judgment which, in each case, is in excess of [*] Dollars ($[*]) following final appeal, remains unsatisfied for a period of ten (10) days.
|
18.12 |
Anything analogous to or having a substantially similar effect to any of the events specified in Clauses 18.7 (Winding-up) to 18.11 (Legal process) shall occur under the laws of any applicable jurisdiction.
111
|
18.13 |
Any Obligor ceases to carry on all or a substantial part of its business.
|
18.14 |
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 consider 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 Majority Lenders and SACE are satisfied that the Lenders' interests might reasonably be expected to be materially adversely affected.
|
18.15 |
At any time it is unlawful or impossible for any Obligor to perform any of its material (to the Secured Parties or any of them) obligations under any Transaction Document to which it is a party or it is unlawful or impossible for the Secured 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 the unlawfulness or impossibility does not relate to the payment obligation of any Obligor under any Transaction Document and is cured within the period of twenty one (21) days of the date of occurrence of the event giving rise to the unlawfulness or impossibility and the affected Obligor performs it obligation within such period.
|
18.16 |
The Borrower fails to insure the Ship in the manner specified in Clause 14 (Insurance Undertakings) 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 provided that if the insurers withdraw their cover an Event of Default shall be deemed to have occurred upon issue of the insurer's notice of withdrawal.
|
18.17 |
If the Borrower or any other Obligor 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.
|
18.18 |
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 Finance Documents.
112
|
18.19 |
The authority of any Obligor 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 Obligor and the Majority Lenders and SACE are satisfied that the Lenders' interest might reasonably be expected to be materially adversely affected.
|
18.20 |
|
(a) |
Any event or circumstance occurs which results in a Material Adverse Effect; and/or |
|
18.21 |
On, or at any time after, the occurrence of an Event of Default the Agent may, and if so instructed by the Majority Lenders and SACE, the Agent shall:
|
(a) |
serve on the Borrower a notice stating that the Commitments and all other obligations of each Lender to the Borrower under this Agreement are terminated; and/or |
|
18.22 |
On the service of a notice under paragraph (a) of Clause 18.21 (Actions following an Event of Default), the Commitments and all other obligations of each Lender to the Borrower under this Agreement shall terminate.
|
18.23 |
On the service of a notice under paragraph (b) of Clause 18.21 (Actions following an Event of Default), the Loan, all accrued interest and all other amounts accrued or owing from the Borrower or any Obligor under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
113
|
18.24 |
Upon an acceleration of repayment of the Loan following an Event of Default the Borrower shall be liable to pay compensation calculated in accordance with Clause 16.2 (Voluntary prepayment).
|
18.25 |
The Agent may serve notices under paragraphs (a) and (b) of Clause 18.21 (Actions following an Event of Default) simultaneously or on different dates and it may take any action referred to in paragraph (c) of Clause 18.21 (Actions following an Event of Default) if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
18.26 |
The Agent shall send to the Italian Authorities, each Lender and each Obligor a copy or the text of any notice which the Agent serves on the Borrower under Clause 18.21 (Actions following an Event of Default); but the notice shall become effective when it is served on the Borrower, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide any Obligor with any form of claim or defence.
|
18.27 |
Nothing in this Clause 18 (Events of Default) shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clauses 2.4 (Creditor Parties' rights and obligations) and 2.6 (Obligations of Lenders several).
|
18.28 |
No Secured Party, and no receiver or manager appointed by the Agent, shall have any liability to an Obligor:
|
19 |
|
19.1 |
Except as any Finance Document may otherwise provide, all sums received under this Agreement or any other Finance Document by the Agent, on behalf of the Lenders, or by any of the Lenders for any reason whatsoever will be applied:
114
pursuant to Clause 20.2 (Breakage costs and SIMEST arrangements) and, sixth, to any other sums due under this Agreement or any other Finance Document and, if relevant, pro rata to each of the Lenders; or
|
20 |
|
20.1 |
The Borrower shall fully indemnify the Agent and each relevant Lender or SIMEST (but without double counting to the extent that a Lender is making a claim in respect of amounts owing to SIMEST) on the Agent's demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Secured Party, or which that Secured Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
|
(a) |
any part of the Loan not being borrowed on the date specified in a Drawdown Notice for any reason other than a default by the Lender claiming the indemnity; |
|
(b) |
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period; |
|
(d) |
the occurrence and/or continuance of an Event of Default and/or the acceleration of repayment of the Loan under Clause 18 (Events of Default). |
|
20.2 |
Without limiting its generality, Clause 20.1 (Indemnities regarding borrowing and repayment of Loan) covers:
115
of the close-out of any hedging arrangement entered into by SIMEST in relation to this Agreement, (iii) default interest and penalties (maggiorazioni) whenever applicable, and (iv) all amounts (if any) to be returned by the Agent to SIMEST under and pursuant to the Interest Make-Up Agreement; and
|
(c) |
any other costs whatsoever or howsoever arising under or in respect of the Interest Make-Up Agreement which are passed to the Agent, |
and any such costs imposed by SIMEST shall be paid by the Borrower to SIMEST through the Agent.
For the purposes of this Clause 20.2 (Breakage costs and SIMEST arrangements) "Interest Make-Up Event" means the occurrence of any circumstances which result in the termination, cancellation, revocation, cessation or suspension (in each case, in whole or in part) of the Interest Make-Up Agreement or the Interest Make-Up Agreement otherwise ceases or may cease to be in full force and effect or the Agent notifies the Borrower that the Fixed Interest Rate is not available for any reason, in each case, in accordance with the terms of the Interest Make-Up Agreement.
|
20.3 |
The Borrower shall fully indemnify each Secured Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may be made or brought against or incurred by a Secured Party, in any country, as a result of or in connection with:
|
(b) |
other than claims, expenses, liabilities and losses which are shown to have been directly and mainly caused by the dishonesty or wilful misconduct of the officers or employees of the Secured Party concerned.
Without prejudice to its generality, this Clause 20.3 (Miscellaneous indemnities) covers (i) any claims, expenses, liabilities and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code or any Environmental Laws or any Sanctions and (ii) any claims, expenses, liabilities (including, without limitation, under a reputational standpoint) and losses which arise, or are asserted, against CDP under or in connection with any breach by the Borrower of any of the provisions paragraphs (nn) to (rr) of Clause 11.2 (Continuing representations and warranties) and/or of Clause 12.2712.28 (Code of Ethics and Model).
|
20.4 |
If any sum due from an Obligor to a Secured Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "Contractual Currency") into another currency (the "Payment Currency") for the purpose of:
|
(a) |
making or lodging any claim or proof against an Obligor, whether in its liquidation, any arrangement involving it or otherwise; or |
116
|
(b) |
obtaining an order or judgment from any court or other tribunal; or |
|
(c) |
the Borrower shall indemnify the Secured Party concerned against the loss arising when the amount of the payment actually received by that Secured Party is converted at the available rate of exchange into the Contractual Currency.
In this Clause 20.4 (Currency indemnity) the "available rate of exchange" means the rate at which the Secured Party concerned is able at the opening of business (Paris time) on the Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment Currency.
This Clause 20.4 (Currency indemnity) creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance Documents and which shall not be merged in any judgment or order relating to those other liabilities.
|
20.5 |
A notice which is signed by 2 officers of a Secured Party, which states that a specified amount, or aggregate amount, is due to that Secured Party under this Clause 20 (Indemnities) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
20.6 |
For the purposes of this Clause 20 (Indemnities), a sum payable by the Borrower to the Agent for distribution to a Lender shall be treated as a sum due to that Lender.
|
20.7 |
SACE obligations |
To the extent that this Clause 20 (Indemnities) imposes obligations or restrictions on a Secured Party, such obligations or restrictions shall not apply to SACE and SACE shall have no obligations hereunder nor be constrained by such restrictions.
|
21 |
|
21.1 |
This Clause 21 (Illegality, etc.) applies if:
|
(a) |
117
|
(b) |
(such event, an "Illegality or Sanctions Event").
|
21.2 |
|
(a) |
The Agent shall promptly notify the Borrower, the Obligors and the other Lenders of the notice under Clause 21 (Illegality, etc.) which the Agent receives from the Notifying Lender. |
|
(c) |
If at the end of the consultation procedure set out in paragraph (b) above, no solution is agreed between the Agent and SIMEST, the Agent must immediately notify the Lenders and the Obligors. |
|
21.3 |
|
(c) |
The date for repayment or prepayment of a Lender's share in the Loan will be: |
|
(i) |
the date specified by the Agent in the notification under paragraph (b) above; or |
118
Advances under a Tranche or, if earlier, the date specified by the Lender in the notification under paragraph (a) above and which must not be earlier than the last day of any applicable grace period allowed by law.
|
21.4 |
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
|
22 |
|
22.1 |
Each Creditor Party may without prior notice:
|
(b) |
|
(i) |
break, or alter the maturity of, all or any part of a deposit of the Borrower; |
|
(ii) |
convert or translate all or any part of a deposit or other credit balance into Dollars; |
|
(iii) |
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate. |
|
22.2 |
No Creditor Party shall be obliged to exercise any of its rights under Clause 22.1 (Application of credit balances); and those rights shall be without prejudice and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
22.3 |
For the purposes of this Clause 22 (Set-Off), a sum payable by the Borrower to the Agent for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
119
|
22.4 |
This Clause 22 (Set-Off) gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of the Borrower.
|
23 |
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation): |
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and |
|
(iii) |
a cancellation of any such liability; and |
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-in Action in relation to any such liability. |
|
24 |
|
24.1 |
Subject to Clause 24.5 (No transfer without Transfer Certificate), Clause 24.17 (Assignment or transfer to SACE) and Clause 24.14 (Change of Facility Office), a Lender (the "Transferor Lender") may at any time provided they have obtained the prior written consent of the Italian Authorities cause:
|
(a) |
its rights in respect of all or part of its ContributionContributions; or |
|
(b) |
its obligations in respect of all or part of its Commitment; or |
|
(c) |
to be (in the case of its rights) transferred to, or (in the case of its obligations) assumed by, in whole or in part any of its Affiliates or another bank or financial institution or a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a "Transferee Lender") by delivering to the Agent a completed certificate in the form set out in Schedule 4 (Form of Transfer Certificate) with any modifications approved or required by the Agent (a "Transfer Certificate") executed by the Transferor Lender and the Transferee Lender.
However any rights and obligations of the Transferor Lender in its capacity as Agent or Security Trustee will have to be dealt with separately in accordance with the provisions of Clauses 26
120
(Role of the Agent and the Joint Mandated Lead Arrangers) and 27 (The Security Trustee) respectively.
|
24.2 |
|
(c) |
The assignment or transfer must be with respect to a minimum Commitment of [*] Dollars ($[*]) or, if less, the Existing Lender's full Commitment. |
|
24.3 |
As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
|
(a) |
sign the Transfer Certificate on behalf of itself, the Borrower, any other Obligors, the Security Trustee and each of the other Lenders; |
|
(b) |
on behalf of the Transferee Lender, send to the Borrower and each Obligor letters or emails notifying them of the Transfer Certificate and attaching a copy of it; and |
|
(c) |
send to the Transferee Lender copies of the letters or emails sent under paragraph (b) above, |
but the Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Transferor Lender and the Transferee 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 that Transferee Lender.
|
24.4 |
A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date, provided that it is signed by the Agent under Clause 24.3 (Transfer Certificate, delivery and notification) on or before that date.
|
24.5 |
Except as provided in Clause 24.16 (Security over Lenders' rights), no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Obligor, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
24.6 |
However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "successor"), the Agent may, if it
121
sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and ContributionContributions as were held by the predecessor Lender.
|
24.7 |
A Transfer Certificate takes effect in accordance with English law as follows:
|
(b) |
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate; |
|
(c) |
the Transferee Lender becomes a Lender with the ContributionContributions previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate; |
The rights and equities of the Borrower or any Obligor referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.
|
24.8 |
During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, ContributionContributions and administrative details (including the Facility
122
Office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 24.4 (Effective Date of Transfer Certificate)) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior notice.
|
24.9 |
The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
|
24.10 |
The Borrower, the Security Trustee and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.
|
24.11 |
In respect of any Transfer Certificate:
|
(a) |
the Agent shall be entitled to recover a registration fee of five thousand Euros (€5,000) from the Transferor Lender or (at the Agent's option) the Transferee Lender; |
|
(c) |
the Transferee Lender shall pay to the Agent, upon demand, such amount as is payable to the Italian Authorities to cover its costs of giving its approval under Clause 24.1 (Transfer by a Lender). |
|
24.12 |
A Lender may sub-participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, the Borrower, any Obligor, the Agent or the Security Trustee but with the prior written consent of SACE.
|
24.13 |
A Lender may disclose to a potential Transferee Lender or sub participant any information which the Lender has received in relation to the Borrower, any Obligor or their affairs under or in connection with any Finance Document, unless the information is clearly of a confidential nature.
|
24.14 |
Subject to the prior written consent of SACE, a Lender may change its Facility Office by giving notice to the Agent and the change shall become effective on the later of:
123
|
(a) |
|
24.15 |
On receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the Facility Office of which the Agent last had notice.
|
24.16 |
In addition to the other rights provided to Lenders under this Clause 24 (Changes to the Lenders) each Lender may without consulting with or obtaining consent from the Borrower or any Obligor but subject to the prior written consent of SACE, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender (i) to the benefit of any Affiliate and/or (ii) within the framework of its, or its Affiliates, direct or indirect funding operations including, without limitation:
except that no such charge, assignment or Security Interest shall:
|
24.17 |
124
doubt, SACE will not assume any of the Lenders' obligations pursuant to Clauses 10 (Taxes, Increased Costs, Costs and Related Charges) or 33 (Confidentiality) of this Agreement), which assignment or transfer shall take effect upon the date stated in the relevant documentation subject to SACE being satisfied that it has complied with all necessary "know your customer" requirements in relation to such assignment or transfer;
|
24.18 |
No prejudice to SACE rights |
Nothing in the Finance Documents shall prejudice or otherwise limit:
|
(a) |
the rights of any Lender to assign its rights or transfer its rights and obligations, under, or in connection with, any Finance Document to SACE or as directed by SACE; and |
|
(b) |
the right of SACE to be subrogated to any Lender's rights under, or in connection with, any Finance Document. |
|
24.19 |
SACE's power to direct |
The Creditor Parties agree and the Obligors acknowledge that SACE has the right to direct the decision-making of the Agent and/or the Security Trustee, including (without limitation) following an Event of Default.
|
24.20 |
Definition of Affiliate |
For the purposes of this Clause 24 (Changes to the Lenders), the definition of "Affiliate" in respect of Crédit Agricole Corporate and Investment Bank shall, for the avoidance of doubt, include any other member of Crédit Agricole Group, and in particular:
|
(a) |
|
(b) |
Caisses Régionales de Crédit Agricole; |
|
(c) |
Crédit Agricole Assurances; |
|
(d) |
|
(e) |
any company or legal entity in which one or more of the companies or entities referred to in paragraphs (a) to (d) above, together or separately, owns a direct majority interest. |
|
25 |
|
25.1 |
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
125
|
26 |
|
26.1 |
|
26.2 |
|
(a) |
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. |
|
(b) |
Except where a Finance 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. |
|
(e) |
The Agent's duties under the Finance Documents are solely administrative in nature. |
|
26.3 |
None of the Joint Mandated Lead Arrangers has any obligations of any kind to any other Party under or in connection with any Transaction Document, the Interest Make-Up Agreement or the SACE Insurance Policy.
|
26.4 |
|
(a) |
Nothing in this Agreement constitutes the Agent or any of the Joint Mandated Lead Arrangers as a trustee or fiduciary of any other person. |
|
(b) |
Neither the Agent nor any of the Joint 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. |
|
26.5 |
The Agent and each of the Joint 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.
|
26.6 |
|
(a) |
126
|
(i) |
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and |
|
(ii) |
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. |
|
(b) |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
|
(i) |
no Event of Default has occurred (unless it has actual knowledge of an Event of Default); and |
|
(ii) |
any right, power, authority or discretion vested in any Party or the Lenders has not been exercised. |
|
(c) |
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts. |
|
(d) |
The Agent may act in relation to the Finance Documents through its personnel and agents. |
|
(e) |
The Agent may disclose to any other Party any information it reasonably believes it has received as the Agent under this Agreement. |
|
26.7 |
|
(a) |
Unless a contrary indication appears in a Finance Document, the Agent shall: |
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders and SACE. |
|
(b) |
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders and SACE will be binding on all the Secured Parties. |
|
(d) |
In the absence of instructions from the Majority Lenders and SACE the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Secured Parties. |
|
(e) |
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 Finance Document. |
127
|
26.8 |
The Agent is not responsible for:
|
26.9 |
128
|
26.10 |
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 Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
26.11 |
|
(a) |
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Creditor Parties, the Borrower and SACE and with the consent of SACE. |
|
(e) |
The Agent's resignation notice shall only take effect upon the appointment of a successor. |
|
(h) |
The appointment of a successor Agent pursuant to this Clause 26.11 (Resignation of the Agent) shall be subject to compliance with all necessary "know your customer" requirements of the Lenders. |
|
26.12 |
|
(b) |
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. |
129
|
26.13 |
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.
|
26.14 |
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and each of the Joint 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 Finance Document including but not limited to:
|
(a) |
the financial condition, status and nature of the Guarantor and each Subsidiary of the Guarantor; |
|
26.15 |
If any Party owes an amount to the Agent under the Finance 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 Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
|
26.16 |
Notwithstanding any rule of law or equity to the contrary, the Agent shall be absolutely entitled:
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance |
130
Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to: |
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or |
|
(ii) |
any options or other derivatives in connection with such securities; and |
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, the Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
26.17 |
SACE Agent, SACE Insurance Policy and Interest Make-Up Agreement |
|
(a) |
Where the context permits, references to the Agent shall include the SACE Agent. The Agent and the SACE Agent shall be the same entity throughout the Security Period. |
|
26.18 |
The Agent shall resign in accordance with Clause 26.11 (Resignation of the Agent) (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) of Clause 26.11 (Resignation of the Agent)) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(c) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
131
and (in each case) a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and that Lender, by notice to the Agent, requires it to resign.
|
27 |
|
27.1 |
|
27.2 |
|
(b) |
|
(i) |
shall become due and payable at the same time as its Corresponding Debt; |
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt. |
|
(c) |
For purposes of this Clause 27.2 (Parallel Debt (Covenant to pay the Security Trustee)), the Security Trustee: |
|
(i) |
is the independent and separate creditor of each Parallel Debt; |
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Secured Parties and its claims in respect of each Parallel Debt shall not be held on trust; and |
|
(d) |
132
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and |
|
(ii) |
increased to the extent that its Corresponding Debt has increased, |
and the Corresponding Debt of an Obligor shall be:
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and |
|
(B) |
increased to the extent that its Parallel Debt has increased, |
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
|
(f) |
This Clause 27.2 (Parallel Debt (Covenant to pay the Security Trustee)) shall apply, with any necessary modifications, to each Finance Document. |
|
27.3 |
The Secured Parties shall not have any independent power to enforce, or have recourse to, any Security Interest created by any of the Finance Documents or to exercise any rights or powers arising under the Finance Documents creating the Security Interest except through the Security Trustee.
|
27.4 |
|
(b) |
Paragraph (a) above is without prejudice to the rights of the Security Trustee, any receiver: |
|
(i) |
under Clause 26.10 (Lenders' indemnity to the Agent) to be indemnified out of the Charged Property; and |
|
(ii) |
under any Finance Document to credit any moneys received or recovered by it to any suspense account. |
|
(c) |
Any transfer by the Security Trustee to the Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Trustee. |
133
|
27.5 |
|
(a) |
Before transferring any moneys to the Agent under Clause 27.4 (Application of receipts), the Security Trustee may, in its discretion: |
|
27.6 |
Following acceleration of any Security Interest, the Security Trustee may, in its discretion, or at the request of the Agent, hold any Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (the interest being credited to the relevant account) for later payment to the Agent for application in accordance with Clause 19 (Application of sums received) in respect of:
|
(a) |
|
(b) |
that the Security Trustee or, in the case of paragraph (b) only, the Agent, reasonably considers, in each case, might become due or owing at any time in the future.
|
27.7 |
Prior to the payment of the proceeds of the Recoveries to the Agent for application in accordance with Clause 19 (Application of sums received) the Security Trustee may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (the interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Trustee's discretion in accordance with the provisions of this Clause 27.7 (Investment of proceeds).
|
27.8 |
|
(a) |
Subject to paragraph (d) below, the Security Trustee shall act in accordance with any instructions given to it by the Agent (acting on the instructions of SACE and the Majority |
134
Lenders or all the Lenders (as appropriate)) or, if so instructed by the Agent (acting on the instructions of SACE and the Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that:
|
(ii) |
unless it has received actual notice of revocation, that those instructions or directions have not been revoked. |
|
(d) |
|
(i) |
|
(ii) |
where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action; |
|
27.9 |
Without prejudice to the provisions of Clause 27.4 (Application of receipts), the Security Trustee may (but shall not be obliged to), in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
27.10 |
|
(a) |
135
|
(ii) |
assume that any notice or request made by the Borrower (other than a Drawdown Notice) is made on behalf of and with the consent and knowledge of all the Obligors; |
|
(v) |
act in relation to the Finance Documents through its personnel and agents; |
|
(vi) |
disclose to any other Party any information it reasonably believes it has received as Security Trustee under this Agreement; |
|
27.11 |
The Security Trustee shall promptly:
|
(a) |
copy to the Agent the contents of any notice or document received by it from any Obligor under any Finance Document; |
|
27.12 |
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Trustee shall not:
136
|
(a) |
be bound to enquire as to (i) whether or not any Event of Default has occurred or (ii) the performance, default or any breach by an Obligor of its obligations under any of the Finance Documents; |
|
(b) |
be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account; |
|
(d) |
have or be deemed to have any relationship of trust or agency with, any Obligor. |
|
27.13 |
None of the Security Trustee, any receiver shall accept responsibility or be liable for:
|
(e) |
any shortfall which arises on the enforcement or realisation of the Security Property. |
|
27.14 |
137
|
27.15 |
No Party (other than the Security Trustee or that receiver) may take any proceedings against any officer, employee or agent of the Security Trustee or a receiver in respect of any claim it might have against the Security Trustee or a receiver in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Trustee or a receiver may rely on this Clause subject to Clause 36.4 (Third party rights) and the provisions of the Third Parties Rights Act.
|
27.16 |
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 Security Trustee and every receiver within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Trustee's or receiver's Gross Negligence or wilful misconduct) in acting as Security Trustee or receiver under the Finance Documents (unless the relevant Security Trustee or receiver has been reimbursed by an Obligor pursuant to a Finance Document).
|
27.17 |
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Creditor Party confirms to the Security Trustee 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 Finance Document including but not limited to:
|
(a) |
the financial condition, status and nature of each member of the Group; |
138
and each Creditor Party warrants to the Security Trustee that it has not relied on and will not at any time rely on the Security Trustee in respect of any of these matters.
|
27.18 |
The Security Trustee shall not be liable for any failure to:
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property; |
|
(e) |
require any further assurances in relation to any of the Finance Documents creating the Security Interests. |
|
27.19 |
|
27.20 |
The Security Trustee may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the Security Trustee may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
139
|
27.21 |
The Security Trustee shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Obligors may have to any of the Charged Property and shall not be liable for or bound to require any Obligor to remedy any defect in its right or title.
|
27.22 |
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Trustee may refrain from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Trustee may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
|
27.23 |
The Security Trustee may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
27.24 |
If the Security Trustee, with the approval of the Agent determines that (a) all of the Secured Liabilities and all other obligations secured by the Finance Documents creating the Security Interests have been fully and finally discharged and (b) none of the Secured Parties is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents:
|
(b) |
any Retiring Security Trustee shall release, without recourse or warranty, all of its rights under each of the Finance Documents creating the Security Interests. |
|
27.25 |
The rights, powers and discretions conferred upon the Security Trustee by this Agreement shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Trustee by general law or otherwise.
|
27.26 |
140
|
27.27 |
In addition to its rights under or by virtue of this Agreement and the other Finance Documents, the Security Trustee shall have all the rights conferred on a trustee by the Trustee Act 1925, the Trustee Delegation Act 1999, the Trustee Act 2000 and by general law or otherwise, provided that:
|
(a) |
section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in relation to the trusts constituted by this Agreement and the other Finance Documents; and |
|
27.28 |
Notwithstanding any rule of law or equity to the contrary, the Security Trustee shall be absolutely entitled:
|
(b) |
to deal in and enter into and arrange transactions relating to: |
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or |
|
(ii) |
any options or other derivatives in connection with such securities; and |
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, each Servicing Party shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
27.29 |
|
(a) |
The Security Trustee may resign and appoint one of its affiliates as successor by giving notice to the Borrower and each Secured Party. |
|
(b) |
Alternatively the Security Trustee may resign by giving notice to the other Parties in which case the Majority Lenders (with the prior consent of SACE) may appoint a successor Security Trustee. |
141
|
(h) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Trustee. |
|
(i) |
The appointment of a successor Security Trustee pursuant to this Clause 27.29 (Resignation of the Security Trustee) shall be subject to compliance with all necessary "know your customer" requirements of the Lenders. |
|
27.30 |
|
27.31 |
|
(a) |
The Security Trustee may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it: |
142
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or |
|
(ii) |
for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Trustee deems to be relevant; or |
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction, |
and the Security Trustee shall give prior notice to the Borrower and the Agent of that appointment.
|
28 |
|
28.1 |
|
(a) |
interfere with the right of any Creditor Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit; |
|
(b) |
oblige any Creditor Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
|
(c) |
oblige any Creditor Party to disclose any information relating to its affairs (Tax or otherwise) or any computations in respect of Tax. |
|
29 |
|
29.1 |
If a Creditor Party (a "Recovering Creditor Party") receives or recovers any amount from an Obligor other than in accordance with this Clause 29 (Sharing among the Creditor Parties) and applies that amount to a payment due under the Finance Documents then:
|
(a) |
the Recovering Creditor Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent; |
143
its share of any payment to be made, in accordance with Clause 19 (Application of sums received) and Clause 30 (Payment Mechanics).
|
29.2 |
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Creditor Parties (other than the Recovering Creditor Party) in accordance with Clause 19 (Application of sums received) and Clause 30 (Payment Mechanics).
|
29.3 |
|
29.4 |
If any part of the Sharing Payment received or recovered by a Recovering Creditor Party becomes repayable and is repaid by that Recovering Creditor Party, then:
|
29.5 |
|
(i) |
it notified that other Creditor Party of the legal or arbitration proceedings; and |
144
|
(c) |
Following full indemnification by SACE of the SACE Agent (on behalf of the Lenders) under the SACE Insurance Policy, the provisions relating to the sharing of proceeds among the Creditor Parties in this Clause 29 (Sharing among the Creditor Parties) shall not apply to any payment made to SACE by a Lender or the Borrower following a payment by SACE to any Lender under the SACE Insurance Policy. |
|
30 |
|
30.1 |
|
(c) |
Payment shall be made before 11.00 a.m. New York time or 11.00 a.m. Paris time (in the case of a payment in Euro). |
|
30.2 |
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3 (Distributions to an Obligor), Clause 30.4 (Clawback) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five (5) Business Days' notice with a bank in the principal financial centre of the country of that currency (or, in relation to Euro, in the principal financial centre of a Participating Member State or London).
|
30.3 |
The Agent may in accordance with Clause 22 (Set-Off) 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 Finance Documents or in or towards purchase of any amount of any currency to be so applied.
|
30.4 |
|
(b) |
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 |
145
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.
|
30.5 |
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
|
30.6 |
|
30.7 |
|
(a) |
Subject to paragraphs (b) and (c) of Clause 30.7 (Currency of account) Dollars is the currency of account and payment for any sum from an Obligor under any Finance Document. |
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or taxes are incurred. |
|
(c) |
Any amount expressed to be payable in a currency other than Dollars shall be paid in that other currency. |
|
30.8 |
|
(a) |
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: |
|
30.9 |
Each payment received by the Agent under the Interest Make-Up Agreement for a Lender shall be made available by the Agent as soon as practicable after receipt to the Lender entitled to
146
receive such payment in accordance with this Agreement (for the account of its Facility Office), to such account as that Lender may notify to the Agent by not less than five (5) Business Days' notice with a bank in the principal financial centre of the country of that currency (or, in relation to Euro, in the principal financial centre of a Participating Member State or London).
|
31 |
|
31.1 |
Subject to Clause 31.2 (Variations, waivers etc. requiring agreement of all Lenders), a document shall be effective to vary, waive, amend, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by email, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which an Obligor is party, by an Obligor (provided that no amendment or variation may be made to this Agreement or any other Finance Document without the consent of the Italian Authorities); provided, further, that no amendment or variation may be made before the date falling ten Business Days after the terms of that amendment or variation have been notified by the Agent to the Lenders. The Agent shall notify the Lenders reasonably promptly of any amendments or variations proposed by the Borrower.
|
31.2 |
However, as regards the following, Clause 31.1 (Variations, waivers etc. by Majority Lenders) applies as if the words "by the Agent on behalf of the Majority Lenders" were replaced by the words "by or on behalf of every Lender":
|
(a) |
|
(b) |
a postponement to the date for, or a reduction in the amount of, any payment of principal, interest, fees, commission or other sum payable under this Agreement; |
|
(c) |
an increase in or extension of any Lender's Commitment under a Tranche or any requirement that a cancellation of Commitments under any Tranche reduces the Commitments rateably under the Loan; |
|
(d) |
|
(e) |
a change to Clause 2 (Facility), Clause 6 (Interest), Clause 24 (Changes to the Lenders) or this Clause 31 (Variations and Waivers); |
|
(f) |
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and |
|
(g) |
any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required. |
|
31.3 |
Except for a document which satisfies the requirements of Clauses 31.1 (Variations, waivers etc. by Majority Lenders) and 31.2 (Variations, waivers etc. requiring agreement of all Lenders), no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence
147
on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
(a) |
a provision of this Agreement or another Finance Document; or |
|
(b) |
|
(c) |
a breach by the Borrower or an Obligor of an obligation under a Finance Document or the general law; or |
|
(d) |
any right or remedy conferred by any Finance Document or by the general law, |
and there shall not be implied into any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable time.
|
32 |
|
32.1 |
Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter or fax; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
32.2 |
A notice shall be sent:
|
(a) |
7665 Corporate Center Drive
Miami FL33126, USA
Attention: Chief Financial Officer and General Counsel
|
(b) |
At the address below its name in Schedule 1 (Lenders and Commitments) or (as the case may require) in the relevant Transfer Certificate.
|
(c) |
CS 70052
92547 Montrouge Cedex, France
Attn: Shipping Middle Office – Ms Clémentine Costil and Romy Roussel
or to such other address as the relevant party may notify the Agent or, if the relevant party is the Agent, the Borrower and the Lenders.
148
|
32.3 |
Subject to Clauses 32.4 (Service outside business hours) and 32.5 (Electronic communication), a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered.
|
32.4 |
However, if under Clause 32.3 (Effective date of notices) a notice would be deemed to be served:
|
(a) |
on a day which is not a business day in the place of receipt; or |
|
(b) |
the notice shall (subject to Clause 32.5 (Electronic communication)) be deemed to be served, and shall take effect, at 9 a.m. on the next day which is such a business day.
|
32.5 |
|
(i) |
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 |
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice. |
|
32.6 |
Clauses 32.3 (Effective date of notices) and 32.4 (Service outside business hours) do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
|
32.7 |
A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:
149
|
(b) |
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been. |
|
32.8 |
Any notice under or in connection with a Finance Document shall be in English.
|
32.9 |
In this Clause 32 (Notices), "notice" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
33 |
|
33.1 |
Each Creditor Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 33.2 (Disclosure of Confidential Information) and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
|
33.2 |
Any Creditor Party may disclose:
|
(b) |
150
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (i) or (ii) above; |
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes; |
|
(vii) |
which is a classification society or other entity which a Lender has engaged to make the calculations necessary to enable that Lender to comply with its reporting obligations under the Poseidon Principles; |
|
(viii) |
who is a Party, a member of the Group or any related entity of an Obligor; |
|
(ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or |
|
(x) |
|
(xi) |
any employee, officer, director or Representative of any Italian Authorities to whom information is required to be disclosed in the course of such person's employment or duties; |
|
(xii) |
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates a Security Interest (or may do so) pursuant to Clause 24.16 (Security over Lenders' rights). |
in each case, such Confidential Information as that Creditor Party shall consider appropriate if:
151
information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party, it is not practicable so to do in the circumstances;
|
33.3 |
This Clause 33 (Confidentiality) constitutes the entire agreement between the Parties in relation to the obligations of the Creditor Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
|
33.4 |
|
(i) |
|
(ii) |
country of domicile of Obligors; |
|
(iii) |
place of incorporation of Obligors; |
|
(iv) |
date of this Agreement; |
|
(v) |
Clause 37 (Governing Law); |
|
(vi) |
the name of the Agent; |
|
(vii) |
amount of Total Commitments; |
|
(viii) |
currency of the Facility; |
|
(ix) |
type of Facility; |
|
(x) |
ranking of Facility; and |
152
|
(xi) |
to enable such information service company to provide its usual services.
|
(b) |
Each Obligor represents that none of the information set out in sub-paragraphs (i) to (xi) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information. |
|
33.5 |
Inside information |
Each of the Creditor Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Creditor Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
33.6 |
Each of the Creditor Parties agrees (to the extent permitted by law and regulation) to inform the Borrower:
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 33 (Confidentiality). |
|
33.7 |
The obligations in this Clause 33 (Confidentiality) are continuing and, in particular, shall survive and remain binding on each Creditor Party for a period of 12 months from the earlier of:
|
(b) |
the date on which such Creditor Party otherwise ceases to be a Creditor Party. |
|
33.8 |
Notwithstanding any other provision of this Agreement to the contrary, SACE may disclose any Confidential Information:
|
(a) |
to its ultimate shareholder, holding subsidiary, parent and affiliate companies; |
|
(b) |
to the Ministry of Economy and Finance of the Republic of Italy and its departments, other Italian Ministries (including any of their department), Interministerial committees of the Italian Government and any other Italian authority, committee, agency or governmental entity; |
|
(c) |
to providers of any reinsurance/counter-guarantee or any form of risk enhancement (including their agents, brokers and consultants) subject to such persons undertaking confidentiality obligations with SACE, unless they are subject to professional duties of confidentiality; |
153
|
(e) |
following any payment due under the SACE Insurance Policy; or |
|
(f) |
with the consent of the Borrower, such consent not to be unreasonably withheld. |
|
33.9 |
Neither SACE nor the Borrower will issue any press release or make any public announcement in relation to the SACE Insurance Policy without the prior consent of the other party (such consent not to be unreasonably withheld).
|
34 |
Legal independence and Unconditional Obligations of the Borrower |
|
34.1 |
Legal independence and Unconditional Obligations of the Borrower |
This Agreement is legally independent from the Shipbuilding Contract. The obligations of the Borrower to make payments and to observe and perform its obligations under the Transaction Documents are absolute, unconditional, irrevocable and several and such obligations shall not:
|
(a) |
in any way be affected or discharged by reason of any matter affecting any of the Pre-delivery Contracts including their performance, frustration or validity, the insolvency or dissolution of any party to any of the Pre-delivery Contracts or the destruction, non-completion or non-functioning of the goods and equipment supplied under the Shipbuilding Contract; |
|
(b) |
in any way be affected or discharged by reason of any dispute under any of the Pre-delivery Contracts or any claim which it or any other person may have against, or consider that it has against, any person under any of the Pre-delivery Contracts; |
|
(c) |
in any way be affected or discharged by reason of unenforceability, illegality or invalidity of any obligation of the Borrower or any other person under any of the Pre-delivery Contracts or any documents or agreements relating to any of the Pre-delivery Contracts; |
|
(d) |
in any way be affected by the fact that all or any part of the amount requested referred to in a Drawdown Notice is not or was not due or payable to the Builder; |
|
(e) |
be conditional on the performance by the Creditor Parties of any obligations (except as otherwise stated herein) in order to give rise to a relevant obligation of the Borrower hereunder; or |
|
(f) |
in any way be affected or discharged by the insolvency or dissolution of the Borrower. |
|
35 |
|
35.1 |
Each Obligor and each Creditor Party acknowledges that, immediately upon any payment being made by SACE of any amount under the SACE Insurance Policy, SACE will be subrogated to the rights of the Lenders in the amount of such payment under the Finance Documents in accordance with the SACE Insurance Policy.
154
|
35.2 |
|
(a) |
Without prejudice to Clause 35.1 (Acknowledgement of Subrogation), each Obligor, jointly and severally undertakes to pay to SACE, and keep SACE indemnified from and against, each and every amount paid (whether by direct payment or set-off) by SACE to the Creditor Parties or any person on any of their behalf under the SACE Insurance Policy; |
|
(b) |
Each Obligor undertakes to pay SACE an amount in Dollars equal to: |
|
(i) |
for each payment made by SACE to any of the Creditor Parties or any person on any of their behalf under the SACE Insurance Policy, the amount of such payment; and |
in each case together with interest thereon (calculated in accordance with Clause 17.1 (Default rate of interest) of this Agreement).
|
(c) |
Each Obligor further agrees that its obligations under this Clause 35.2 (Reimbursement) are separate from and in no way conditional upon the Obligor's obligations under this Agreement or any of the other Finance Documents and will not be affected or discharged by any matter relating thereto including, but not limited to, whether or not the Obligor is itself liable to make payment, or is disputing its liability to make payment, under this Agreement or any of the other Finance Documents. |
|
(d) |
SACE will promptly inform the Obligors of any amounts to be reimbursed and indemnified under this Clause 35.2 (Reimbursement). |
|
(e) |
Each amount that is payable by the Obligors pursuant to Clause 35.2 (Reimbursement) is due and payable to SACE in Dollars within five (5) Business Days of demand by SACE to the Obligors. |
|
35.3 |
Obligations Absolute |
The obligations of the Obligors under this Clause 35.2 (Reimbursement), to the extent permitted by applicable law:
|
(a) |
are absolute and unconditional; |
|
(b) |
are to be discharged and/or performed strictly in accordance with this Agreement under all circumstances; |
|
(c) |
are continuing obligations and will extend to the ultimate balance of sums payable by SACE to any Creditor Party or any person on any of their behalf under the SACE Insurance Policy, regardless of any intermediate payment or discharge in whole or in part; |
|
(d) |
will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Clause 35.2 (Reimbursement) (without limitation and whether or not known to it or any Creditor Party) including: |
|
(i) |
any time, waiver or consent granted to, or composition with any Obligor; |
155
|
(ii) |
any lack of validity or enforceability of, or any amendment or other modifications of, or waiver with respect to, any of the Finance Documents; |
|
(iii) |
any reduction or release of any other obligations under this Agreement; |
|
(iv) |
the release of any Obligor or any other person under the terms of any composition or arrangement; |
|
(v) |
the taking, variation, compromise, exchange, renewal, discharge, substitution or release of, or refusal or neglect to perfect, take up, realise or enforce, any rights against, or security over assets of, any Obligor 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; |
|
(vi) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Obligor, any Creditor Party or any other person; |
|
(vii) |
any amendment (however fundamental) or replacement of a Finance Document, the SACE Insurance Policy or any other document or security; |
|
(viii) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, the SACE Insurance Policy or any other document or security; |
|
(ix) |
any insolvency or similar proceedings; |
|
(x) |
the existence of any claim, set-off, defence, reduction, abatement or other right which any Obligor may have at any time against SACE; |
|
(xi) |
any document presented in connection with the SACE Insurance Policy proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; |
|
(xii) |
any payment by SACE against presentation of a demand for payment substantially, on its face, in the form of a claim under the SACE Insurance Policy where any certificate or other document required to be provided with such claim in accordance with the terms of the SACE Insurance Policy either is not provided or does not comply with the terms of the SACE Insurance Policy; and |
|
(xiii) |
any other circumstances which might otherwise constitute a defence available to, or discharge of any Obligor. |
|
36 |
Supplemental |
|
36.1 |
The rights and remedies which the Finance Documents give to each Secured Party are:
|
(a) |
|
(b) |
156
|
(c) |
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law. |
|
36.2 |
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
|
36.3 |
A Finance Document may be executed in any number of counterparts.
|
36.4 |
|
(c) |
Subject to the provisions of the Third Party Act, and without prejudice to the provisions of paragraphs (a) and (b) above, SACE has the right to enforce and to enjoy the benefit of Clause 35 (SACE Subrogation and Reimbursement), Clause 17 (Interest on Late Payments), Clause 8 (SACE Premium and Italian Authorities), Clause 10.2 (Tax gross-up), Clause 10.3 (Tax indemnity), Clause 10.11 (Transaction Costs), Clause 20.1 (Indemnities regarding borrowing and repayment of Loan), Clause 20.3 (Miscellaneous indemnities), Clause 20.4 (Currency indemnity), Clause 22 (Set-Off), Clause 27 (The Security Trustee), Clause 10.6 (VAT), Clause 10.13 (SACE obligations), Clauses 33.8 (Disclosure by SACE) and 33.9 (Press release) and Clause 38 (Enforcement). |
|
(d) |
Any amendment or waiver which relates to the rights of SACE under this Agreement, including under Clause 35 (SACE Subrogation and Reimbursement), Clause 17 (Interest on Late Payments), Clause 8 (SACE Premium and Italian Authorities), Clause 10.2 (Tax gross-up), Clause 10.3 (Tax indemnity), Clause 20.4 (Currency indemnity), Clause 22 (Set-Off), Clause 27 (The Security Trustee), Clause 20.3 (Miscellaneous indemnities), Clause 10.6 (VAT), Clause 10.11 (Transaction Costs), Clause 20.1 (Indemnities regarding borrowing and repayment of Loan), Clauses 33.8 (Disclosure by SACE) and 33.9 (Press release) and Clause 38 (Enforcement) may not be effected without the consent of SACE. |
|
36.5 |
No failure or delay on the part of a Secured Party 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 Secured Parties or the exercise by the Secured Parties of any other right, power or privilege. The rights and remedies of the Secured Parties herein provided are cumulative and not exclusive of any rights or remedies provided by law.
157
|
36.6 |
This Agreement shall not be capable of being modified otherwise than by an express modification in writing signed by the Borrower, the Agent and the Lenders.
|
37 |
|
37.1 |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with English law.
|
38 |
|
38.1 |
The courts of England have exclusive jurisdiction to settle any Dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a "Dispute"). Each Party 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.
|
38.2 |
Without prejudice to any other mode of service allowed under any relevant law, the Borrower:
|
(b) |
agrees that failure by a process agent to notify the Borrower 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 (on behalf of all the Obligors) must immediately (and in any event within 15 days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.
|
39 |
Confidentiality of Funding Rates and Reference Bank Quotations |
|
39.1 |
|
(a) |
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below. |
|
(b) |
|
(i) |
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 6.5 (Notification of Interest Periods and Floating Interest Rate); |
|
(ii) |
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents |
158
to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
(c) |
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to: |
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and |
|
(iv) |
any person with the consent of the relevant Lender or Reference Bank, as the case may be. |
|
39.2 |
Related obligations |
|
(a) |
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider |
159
dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
(b) |
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be: |
|
(i) |
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 39.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
|
(ii) |
upon becoming aware that any information has been disclosed in breach of this Clause 39 (Confidentiality of Funding Rates and Reference Bank Quotations). |
|
39.3 |
No Event of Default |
No Event of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor's failure to comply with this Clause 39 (Confidentiality of Funding Rates and Reference Bank Quotations).
This Agreement has been entered into and amended and restated on the date stated at the
160
BORROWER
SIGNED by)
)
for and on behalf of)
LEONARDO ONE, LTD.)
in the presence of:)
SIGNED by)
)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE)
AND INVESTMENT BANK)
in the presence of:)
SIGNED by)
)
for and on behalf of)
BNP PARIBAS FORTIS S.A./N.V.)
in the presence of:)
SIGNED by)
)
for and on behalf of)
HSBC CONTINENTAL EUROPE, ITALY)
CASSA DEPOSITI E PRESTITI S.P.A.)
JOINT MANDATED LEAD ARRANGERS
KFW IPEX-BANK GMBH)
in the presence of:)
SIGNED by)
)
for and on behalf of)
HSBC BANK PLCCONTINENTAL EUROPE, ITALY)
in the presence of:)
CASSA DEPOSITI E PRESTITI S.P.A.)
SIGNED by)
)
for and on behalf of)
BNP PARIBAS FORTIS S.A./N.V. )
HSBC CONTINENTAL EUROPE, ITALY )
CASSA DEPOSITI E PRESTITI S.P.A. )
in the presence of: )
JOINT MANDATED LEAD ARRANGERS
SIGNED by )
)
for and on behalf of )
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK )
in the presence of: )
SIGNED by )
)
for and on behalf of )
BNP PARIBAS FORTIS S.A./N.V. )
in the presence of: )
SIGNED by )
)
for and on behalf of )
KFW IPEX-BANK GMBH )
in the presence of: )
SIGNED by )
)
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
SIGNED by )
)
for and on behalf of )
CASSA DEPOSITI E PRESTITI S.P.A. )
in the presence of: )
AGENT
SIGNED by)
)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE)
AND INVESTMENT BANK)
in the presence of:)
SACE AGENT
SIGNED by)
)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
in the presence of:)
SECURITY TRUSTEE
SIGNED by)
)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
in the presence of:)
