Declarations and Undertakings. a) We hereby represent and warrant to each Lender Party that: i) we are a corporation validly organised and existing in good standing under the laws of the Republic of Liberia; ii) we have full power and authority, and have taken all corporate action necessary to enter into this Letter of Guarantee and perform our obligations hereunder; iii) the execution, delivery and performance by us of this Letter of Guarantee do not: (1) contravene our articles of incorporation and by-laws; (2) contravene any law or governmental regulation of England, U.S.A. or the Republic of Liberia, except to the extent that failure to comply with such law or regulation, in each case, would not reasonably be expected to have a Material Adverse Effect; (3) contravene any court decree or order binding on us or any of our property, except as would not reasonably be expected to have a Material Adverse Effect; (4) contravene any contractual restriction binding on us or any of our property, except to the extent that failure to comply with such restriction would not reasonably be expected to have a Material Adverse Effect; iv) this Letter of Guarantee constitutes our legal, valid and binding obligation enforceable against us in accordance with the terms hereof except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles; v) our obligations under this Letter of Guarantee rank at least pari passu in right of payment and in all other respects with all our other unsecured unsubordinated Indebtedness (as defined in the Agreement); vi) neither we nor any of our properties or revenues is entitled to any right of immunity in the U.S.A. or England from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to our obligations (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc hereunder (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted to exist); vii) no filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of the U.S.A. or England to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Letter of Guarantee; viii) we have not at the date hereof received any notice requiring any of our Indebtedness (as defined in the Agreement) in excess of US$50,000,000 to be prepaid (whether by redemption, purchase, offer to purchase or otherwise) prior to its stated maturity; ix) the financial and other information (other than projections and other forward looking information) furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Letter of Guarantee, when read together with all other financial and other information furnished to the Administrative Agent, is, to the best knowledge and belief of the Guarantor, true and correct in all material respects and contains no misstatement of a fact of a material nature. All financial projections have been prepared in good faith by the Guarantor based on assumptions believed by the Guarantor to be reasonable at the time of delivery of such information (it being understood that such projections are subject to significant contingencies and uncertainties, many of which are beyond the Guarantor’s control, and no assurance can be given that such projections will be realized). All financial and other information furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Guarantor in good faith; and x) as of the date of this Letter of Guarantee, no payment to be made by the Guarantor or the Borrower under any Loan Document to which it is a party is subject to any withholding or like tax imposed by any Applicable Jurisdiction. b) We further undertake that as and from the date of this Letter of Guarantee and until such time as the Loan to the Borrower has been paid in full to perform the obligations set forth below: i) We will furnish, or cause to be furnished, to the Administrative Agent the following financial statements and notices: (1) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of our report on Form 10-Q (or any successor form) as filed by us with the Securities (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc and Exchange Commission for such Fiscal Quarter, containing our unaudited consolidated financial statements for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments; (2) as soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of our annual report on Form 10-K (or any successor form) as filed by us with the Securities and Exchange Commission for such Fiscal Year, containing our audited consolidated financial statements for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLC or another firm of independent public accountants of similar standing; and (3) promptly after each of the statements delivered pursuant to the foregoing clause (1) or (2) is delivered or deemed delivered, a Compliance Certificate as of the last day of the relevant Fiscal Quarter or Fiscal Year. Any information required to be furnished pursuant to paragraphs (1) and (2) of this Section 2(b)(i) shall be deemed to have been furnished on the date on which such information is posted on the Guarantor’s website on the Internet at xxx.xxxxxxxxxxx.xxx or shall be available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Guarantor shall have given the Administrative Agent notice of such posting. Each Lender shall be entitled to disclose to any “Assignee Lender” and/or “Participant” (as each such expression is defined in the Agreement) such information in respect of ourselves and our Subsidiaries as such Lender shall consider appropriate provided that where such information has been given to such Lender on the basis that it is to be treated by such Lender as confidential such Lender shall only disclose such information to such Assignee Lender and/or Participant if such Assignee Lender and/or Participant has first given its assurance that it will also treat such information as confidential. ii) We will not permit our: (1) Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1; (2) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter; or (3) Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc accounting period, but in any event excluding any Fiscal Quarters for which the Guarantor and its Subsidiaries have a consolidated net loss). iii) We will not, and will not permit any of our Subsidiaries to, create, incur, assume or suffer to exist any Lien (as defined in the Agreement) upon any property, revenues or assets, whether now owned or hereafter acquired, except: (1) Liens on the vessel BRILLIANCE OF THE SEAS existing as of the Effective Date of the Agreement and securing the Existing Debt (and any Lien on BRILLIANCE OF THE SEAS securing any refinancing of the Existing Debt, so long as such Guarantor Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing); (2) Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Guarantor after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Guarantor or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Guarantor Vessel, owns a Guarantor Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of the Guarantor’s Credit Agreement dated as of March 27, 2003, as amended and restated as of June 29, 2007 (as further amended from time to time) among the Borrower, Citibank, N.A., as administrative agent and the various financial institutions party thereto and the Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets; (3) in addition to other Liens permitted hereunder, Liens securing Indebtedness in an aggregate principal amount at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien) (x) 3.5% of the total assets of the Guarantor and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $225,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (3), the fair market value of any assets shall be determined by (i) in the case of any Guarantor Vessel, by an Approved Appraiser selected by the Guarantor and (ii) in the case of any other assets, by an officer of the Guarantor or by the board of directors of the Guarantor); (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc (4) Liens on assets acquired after the Effective Date by the Guarantor or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Guarantor Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Guarantor or any of its Subsidiaries in anticipation thereof; (5) Liens on any asset of any corporation that becomes a Subsidiary of the Guarantor (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Guarantor is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Guarantor and were not created by the Guarantor or any of its Subsidiaries in anticipation thereof; (6) Liens securing Government-related Obligations; (7) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings; (8) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings; (9) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits; (10) Liens for current crew’s wages and salvage; (11) Liens arising by operation of law as the result of the furnishing of necessaries for any Guarantor Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings; and (12) Liens on Guarantor Vessels that:
Appears in 1 contract
Declarations and Undertakings. a) We hereby represent and warrant to each Lender Party that:
i) we are a corporation validly organised and existing in good standing under the laws of the Republic of Liberia;
ii) we have full power and authority, and have taken all corporate action necessary to enter into this Letter of Guarantee and perform our obligations hereunder;
iii) the execution, delivery and performance by us of this Letter of Guarantee do not:
(1) contravene our articles of incorporation and by-laws;
(2) contravene any law or governmental regulation of England, U.S.A. or the Republic of Liberia, except to the extent that failure to comply with such law or regulation, in each case, would not reasonably be expected to have a Material Adverse Effect;
(3) contravene any court decree or order binding on us or any of our property, except as would not reasonably be expected to have a Material Adverse Effect;
(4) contravene any contractual restriction binding on us or any of our property, except to the extent that failure to comply with such restriction would not reasonably be expected to have a Material Adverse Effect;
iv) this Letter of Guarantee constitutes our legal, valid and binding obligation enforceable against us in accordance with the terms hereof except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles;; (NY) 18002/039/AMENDMENTS/hull.675.credit.agt.exhibits.doc
v) our obligations under this Letter of Guarantee rank at least pari passu in right of payment and in all other respects with all our other unsecured unsubordinated Indebtedness (as defined in the Agreement);
vi) neither we nor any of our properties or revenues is entitled to any right of immunity in the U.S.A. or England from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to our obligations (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc hereunder (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted to exist);
vii) no filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of the U.S.A. or England to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Letter of Guarantee;
viii) we have not at the date hereof received any notice requiring any of our Indebtedness (as defined in the Agreement) in excess of US$50,000,000 to be prepaid (whether by redemption, purchase, offer to purchase or otherwise) prior to its stated maturity;
ix) the financial and other information (other than projections and other forward looking information) furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Letter of Guarantee, when read together with all other financial and other information furnished to the Administrative Agent, is, to the best knowledge and belief of the Guarantor, true and correct in all material respects and contains no misstatement of a fact of a material nature. All financial projections have been prepared in good faith by the Guarantor based on assumptions believed by the Guarantor to be reasonable at the time of delivery of such information (it being understood that such projections are subject to significant contingencies and uncertainties, many of which are beyond the Guarantor’s control, and no assurance can be given that such projections will be realized). All financial and other information furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Guarantor in good faith; and
x) as of the date of this Letter of Guarantee, no payment to be made by the Guarantor or the Borrower under any Loan Document to which it is a party is subject to any withholding or like tax imposed by any Applicable Jurisdiction.. (NY) 18002/039/AMENDMENTS/hull.675.credit.agt.doc
b) We further undertake that as and from the date of this Letter of Guarantee and until such time as the Loan to the Borrower has been paid in full to perform the obligations set forth below:
i) We will furnish, or cause to be furnished, to the Administrative Agent the following financial statements and notices:
(1) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of our report on Form 10-Q (or any successor form) as filed by us with the Securities (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc and Exchange Commission for such Fiscal Quarter, containing our unaudited consolidated financial statements for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(2) as soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of our annual report on Form 10-K (or any successor form) as filed by us with the Securities and Exchange Commission for such Fiscal Year, containing our audited consolidated financial statements for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLC or another firm of independent public accountants of similar standing; and
(3) promptly after each of the statements delivered pursuant to the foregoing clause (1) or (2) is delivered or deemed delivered, a Compliance Certificate as of the last day of the relevant Fiscal Quarter or Fiscal Year. Any information required to be furnished pursuant to paragraphs (1) and (2) of this Section 2(b)(i) shall be deemed to have been furnished on the date on which such information is posted on the Guarantor’s website on the Internet at xxx.xxxxxxxxxxx.xxx or shall be available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Guarantor shall have given the Administrative Agent notice of such posting. Each Lender shall be entitled to disclose to any “Assignee Lender” and/or “Participant” (as each such expression is defined in the Agreement) such information in respect of ourselves and our Subsidiaries as such Lender shall consider appropriate provided that where such information has been given to such Lender on the basis that it is to be treated by such Lender as confidential such Lender shall only disclose such information to such Assignee Lender and/or Participant if such Assignee Lender and/or Participant has first given its assurance that it will also treat such information as confidential.
ii) We will not permit our:: (NY) 18002/039/AMENDMENTS/hull.675.credit.agt.exhibits.doc
(1) Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1;
(2) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter; or
(3) Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc accounting period, but in any event excluding any Fiscal Quarters for which the Guarantor and its Subsidiaries have a consolidated net loss).
iii) We will not, and will not permit any of our Subsidiaries to, create, incur, assume or suffer to exist any Lien (as defined in the Agreement) upon any property, revenues or assets, whether now owned or hereafter acquired, except:
(1) Liens on the vessel BRILLIANCE OF THE SEAS existing as of the Effective Date of the Agreement and securing the Existing Debt (and any Lien on BRILLIANCE OF THE SEAS securing any refinancing of the Existing Debt, so long as such Guarantor Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing);
(2) Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Guarantor after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Guarantor or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Guarantor Vessel, owns a Guarantor Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of the Guarantor’s Credit Agreement dated as of March 27, 2003, as amended and restated as of June 29, 2007 (as further amended from time to time) among the Borrower, Citibank, N.A., as administrative agent and the various financial institutions party thereto and the Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(3) in addition to other Liens permitted hereunder, Liens securing Indebtedness in an aggregate principal amount at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien) (x) 3.5% of the total assets of the Guarantor and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $225,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (3), the fair market value of any assets shall be determined by (i) in the case of any Guarantor Vessel, by an Approved Appraiser selected by the Guarantor and (ii) in the case of any other assets, by an officer of the Guarantor or by the board of directors of the Guarantor); (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc
(4) Liens on assets acquired after the Effective Date by the Guarantor or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Guarantor Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(5) Liens on any asset of any corporation that becomes a Subsidiary of the Guarantor (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Guarantor is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Guarantor and were not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(6) Liens securing Government-related Obligations;
(7) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
(8) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
(9) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
(10) Liens for current crew’s wages and salvage;
(11) Liens arising by operation of law as the result of the furnishing of necessaries for any Guarantor Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings; and
(12) Liens on Guarantor Vessels that:
Appears in 1 contract
Declarations and Undertakings. a) We hereby represent and warrant to each Lender Party that:
i) we are a corporation validly organised and existing in good standing under the laws of the Republic of Liberia;
ii) we have full power and authority, and have taken all corporate action necessary to enter into this Letter of Guarantee and perform our obligations hereunder;
iii) the execution, delivery and performance by us of this Letter of Guarantee do not:
(1) contravene our articles of incorporation and by-laws;
(2) contravene any law or governmental regulation of England, U.S.A. or the Republic of Liberia, except to the extent that failure to comply with such law or regulation, in each case, would not reasonably be expected to have a Material Adverse Effect;
(3) contravene any court decree or order binding on us or any of our property, except as would not reasonably be expected to have a Material Adverse Effect;
(4) contravene any contractual restriction binding on us or any of our property, except to the extent that failure to comply with such restriction would not reasonably be expected to have a Material Adverse Effect;
iv) this Letter of Guarantee constitutes our legal, valid and binding obligation enforceable against us in accordance with the terms hereof except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles;
v) our obligations under this Letter of Guarantee rank at least pari passu in right of payment and in all other respects with all our other unsecured unsubordinated Indebtedness (as defined in the Agreement);
vi) neither we nor any of our properties or revenues is entitled to any right of immunity in the U.S.A. or England from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to our obligations (NY) 18002/039/XXXX.000.XXXXSOLSTICE2/hull.677.loan.agt.exhibits.doc solstice.2.loan.agt.doc hereunder (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted to exist);
vii) no filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of the U.S.A. or England to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Letter of Guarantee;
viii) we have not at the date hereof received any notice requiring any of our Indebtedness (as defined in the Agreement) in excess of US$50,000,000 to be prepaid (whether by redemption, purchase, offer to purchase or otherwise) prior to its stated maturity;
ix) the financial and other information (other than projections and other forward looking information) furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Letter of Guarantee, when read together with all other financial and other information furnished to the Administrative Agent, is, to the best knowledge and belief of the Guarantor, true and correct in all material respects and contains no misstatement of a fact of a material nature. All financial projections have been prepared in good faith by the Guarantor based on assumptions believed by the Guarantor to be reasonable at the time of delivery of such information (it being understood that such projections are subject to significant contingencies and uncertainties, many of which are beyond the Guarantor’s control, and no assurance can be given that such projections will be realized). All financial and other information furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Guarantor in good faith; and
x) as of the date of this Letter of Guarantee, no payment to be made by the Guarantor or the Borrower under any Loan Document to which it is a party is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
b) We further undertake that as and from the date of this Letter of Guarantee and until such time as the Loan to the Borrower has been paid in full to perform the obligations set forth below:
i) We will furnish, or cause to be furnished, to the Administrative Agent the following financial statements and notices:
(1) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of our report on Form 10-Q (or any successor form) as filed by us with the Securities (NY) 18002/039/XXXX.000.XXXXSOLSTICE2/hull.677.loan.agt.exhibits.doc solstice.2.loan.agt.doc and Exchange Commission for such Fiscal Quarter, containing our unaudited consolidated financial statements for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(2) as soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of our annual report on Form 10-K (or any successor form) as filed by us with the Securities and Exchange Commission for such Fiscal Year, containing our audited consolidated financial statements for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLC or another firm of independent public accountants of similar standing; and
(3) promptly after each of the statements delivered pursuant to the foregoing clause (1) or (2) is delivered or deemed delivered, a Compliance Certificate as of the last day of the relevant Fiscal Quarter or Fiscal Year. Any information required to be furnished pursuant to paragraphs (1) and (2) of this Section 2(b)(i) shall be deemed to have been furnished on the date on which such information is posted on the Guarantor’s website on the Internet at xxx.xxxxxxxxxxx.xxx or shall be available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Guarantor shall have given the Administrative Agent notice of such posting. Each Lender shall be entitled to disclose to any “Assignee Lender” and/or “Participant” (as each such expression is defined in the Agreement) such information in respect of ourselves and our Subsidiaries as such Lender shall consider appropriate provided that where such information has been given to such Lender on the basis that it is to be treated by such Lender as confidential such Lender shall only disclose such information to such Assignee Lender and/or Participant if such Assignee Lender and/or Participant has first given its assurance that it will also treat such information as confidential.
ii) We will not permit our:
(1) Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1;
(2) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter; or
(3) Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single (NY) 18002/039/XXXX.000.XXXXSOLSTICE2/hull.677.loan.agt.exhibits.doc solstice.2.loan.agt.doc accounting period, but in any event excluding any Fiscal Quarters for which the Guarantor and its Subsidiaries have a consolidated net loss).
iii) We will not, and will not permit any of our Subsidiaries to, create, incur, assume or suffer to exist any Lien (as defined in the Agreement) upon any property, revenues or assets, whether now owned or hereafter acquired, except:
(1) Liens on the vessel BRILLIANCE OF THE SEAS existing as of the Effective Date of the Agreement and securing the Existing Debt (and any Lien on BRILLIANCE OF THE SEAS securing any refinancing of the Existing Debt, so long as such Guarantor Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing);
(2) Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Guarantor after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Guarantor or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Guarantor Vessel, owns a Guarantor Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of the Guarantor’s Credit Agreement dated as of March 27, 2003, as amended and restated as of June 29, 2007 (as further amended from time to time) among the Borrower, Citibank, N.A., as administrative agent and the various financial institutions party thereto and the Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(3) in addition to other Liens permitted hereunder, Liens securing Indebtedness in an aggregate principal amount at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien) (x) 3.5% of the total assets of the Guarantor and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $225,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (3), the fair market value of any assets shall be determined by (i) in the case of any Guarantor Vessel, by an Approved Appraiser selected by the Guarantor and (ii) in the case of any other assets, by an officer of the Guarantor or by the board of directors of the Guarantor); (NY) 18002/039/XXXX.000.XXXXSOLSTICE2/hull.677.loan.agt.exhibits.docsolstice.2.loan.agt.doc
(4) Liens on assets acquired after the Effective Date by the Guarantor or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Guarantor Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(5) Liens on any asset of any corporation that becomes a Subsidiary of the Guarantor (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Guarantor is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Guarantor and were not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(6) Liens securing Government-related Obligations;
(7) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
(8) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
(9) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
(10) Liens for current crew’s wages and salvage;
(11) Liens arising by operation of law as the result of the furnishing of necessaries for any Guarantor Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings; and
(12) Liens on Guarantor Vessels that:
(a) secure obligations covered (or reasonably expected to be covered) by insurance;
(b) were incurred in the course of or incidental to trading such Guarantor Vessel in connection with repairs or other work to such Guarantor Vessel; or (NY) 18002/039/SOLSTICE2/solstice.2.loan.agt.doc
(c) were incurred in connection with work to such Guarantor Vessel that is required to be performed pursuant to applicable law, rule, regulation or order; provided that, in each case described in this clause (12), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings.
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Declarations and Undertakings. a) We hereby represent and warrant to each Lender Party that:
i) we are a corporation validly organised and existing in good standing under the laws of the Republic of Liberia;
ii) we have full power and authority, and have taken all corporate action necessary to enter into this Letter of Guarantee and perform our obligations hereunder;
iii) the execution, delivery and performance by us of this Letter of Guarantee do not:
(1) contravene our articles of incorporation and by-laws;
(2) contravene any law or governmental regulation of England, U.S.A. or the Republic of Liberia, except to the extent that failure to comply with such law or regulation, in each case, would not reasonably be expected to have a Material Adverse Effect;
(3) contravene any court decree or order binding on us or any of our property, except as would not reasonably be expected to have a Material Adverse Effect;
(4) contravene any contractual restriction binding on us or any of our property, except to the extent that failure to comply with such restriction would not reasonably be expected to have a Material Adverse Effect;
iv) this Letter of Guarantee constitutes our legal, valid and binding obligation enforceable against us in accordance with the terms hereof except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles;
v) our obligations under this Letter of Guarantee rank at least pari passu in right of payment and in all other respects with all our other unsecured unsubordinated Indebtedness (as defined in the Agreement);
vi) neither we nor any of our properties or revenues is entitled to any right of immunity in the U.S.A. or England from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to our obligations (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc hereunder (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted to exist);; (NY) 18002/039/SOLSTICE5/solstice.5.loan.agt.exhibits.doc
vii) no filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of the U.S.A. or England to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Letter of Guarantee;
viii) we have not at the date hereof received any notice requiring any of our Indebtedness (as defined in the Agreement) in excess of US$50,000,000 to be prepaid (whether by redemption, purchase, offer to purchase or otherwise) prior to its stated maturity;
ix) the financial and other information (other than projections and other forward looking information) furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Letter of Guarantee, when read together with all other financial and other information furnished to the Administrative Agent, is, to the best knowledge and belief of the Guarantor, true and correct in all material respects and contains no misstatement of a fact of a material nature. All financial projections have been prepared in good faith by the Guarantor based on assumptions believed by the Guarantor to be reasonable at the time of delivery of such information (it being understood that such projections are subject to significant contingencies and uncertainties, many of which are beyond the Guarantor’s control, and no assurance can be given that such projections will be realized). All financial and other information furnished to the Administrative Agent in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Guarantor in good faith; and
x) as of the date of this Letter of Guarantee, no payment to be made by the Guarantor or the Borrower under any Loan Document to which it is a party is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
b) We further undertake that as and from the date of this Letter of Guarantee and until such time as the Loan to the Borrower has been paid in full to perform the obligations set forth below:
i) We will furnish, or cause to be furnished, to the Administrative Agent the following financial statements and notices:
(1) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of our report on Form 10-Q (or any successor form) as filed by us with the Securities (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc and Exchange Commission for such Fiscal Quarter, containing our unaudited consolidated financial statements for such Fiscal Quarter (NY) 18002/039/SOLSTICE5/solstice.5.loan.agt.exhibits.doc (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(2) as soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of our annual report on Form 10-K (or any successor form) as filed by us with the Securities and Exchange Commission for such Fiscal Year, containing our audited consolidated financial statements for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLC or another firm of independent public accountants of similar standing; and
(3) promptly after each of the statements delivered pursuant to the foregoing clause (1) or (2) is delivered or deemed delivered, a Compliance Certificate as of the last day of the relevant Fiscal Quarter or Fiscal Year. Any information required to be furnished pursuant to paragraphs (1) and (2) of this Section 2(b)(i) shall be deemed to have been furnished on the date on which such information is posted on the Guarantor’s website on the Internet at xxx.xxxxxxxxxxx.xxx or shall be available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Guarantor shall have given the Administrative Agent notice of such posting. Each Lender shall be entitled to disclose to any “Assignee Lender” and/or “Participant” (as each such expression is defined in the Agreement) such information in respect of ourselves and our Subsidiaries as such Lender shall consider appropriate provided that where such information has been given to such Lender on the basis that it is to be treated by such Lender as confidential such Lender shall only disclose such information to such Assignee Lender and/or Participant if such Assignee Lender and/or Participant has first given its assurance that it will also treat such information as confidential.
ii) We will not permit our:
(1) Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1;
(2) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter; or
(3) Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single (NY) 18002/039/XXXX.000.XXXX/hull.677.loan.agt.exhibits.doc accounting period, but in any event excluding any Fiscal Quarters for which the Guarantor and its Subsidiaries have a consolidated net loss).. (NY) 18002/039/SOLSTICE5/solstice.5.loan.agt.exhibits.doc
iii) We will not, and will not permit any of our Subsidiaries to, create, incur, assume or suffer to exist any Lien (as defined in the Agreement) upon any property, revenues or assets, whether now owned or hereafter acquired, except:
(1) Liens on the vessel BRILLIANCE OF THE SEAS existing as of the Effective Date of the Agreement and securing the Existing Debt (and any Lien on BRILLIANCE OF THE SEAS securing any refinancing of the Existing Debt, so long as such Guarantor Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing)) [to be brought current at the time of signing];
(2) Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Guarantor after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Guarantor or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Guarantor Vessel, owns a Guarantor Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of the Guarantor’s Credit Agreement dated as of March 27, 2003, as amended and restated as of June 29, 2007 (as further amended from time to time) among the Borrower, Citibank, N.A., as administrative agent and the various financial institutions party thereto and the Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(3) in addition to other Liens permitted hereunder, Liens securing Indebtedness in an aggregate principal amount at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien) (x) 3.5% of the total assets of the Guarantor and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $225,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (3), the fair market value of any assets shall be determined by (i) in the case of any Guarantor Vessel, by an Approved Appraiser selected by the Guarantor and (ii) in the case of any other assets, by an officer of the Guarantor or by the board of directors of the Guarantor); (NY) 18002/039/XXXX.000.XXXXSOLSTICE5/hull.677.loan.agt.exhibits.docsolstice.5.loan.agt.exhibits.doc
(4) Liens on assets acquired after the Effective Date by the Guarantor or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Guarantor Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(5) Liens on any asset of any corporation that becomes a Subsidiary of the Guarantor (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Guarantor is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Guarantor and were not created by the Guarantor or any of its Subsidiaries in anticipation thereof;
(6) Liens securing Government-related Obligations;
(7) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
(8) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
(9) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
(10) Liens for current crew’s wages and salvage;
(11) Liens arising by operation of law as the result of the furnishing of necessaries for any Guarantor Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings; and
(12) Liens on Guarantor Vessels that:
Appears in 1 contract
