Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarter: 11.1.1 at all times the minimum Free Liquidity will be not less than fifty million Dollars (USD50,000,000); 11.1.2 either: (a) as at the end of each financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) to one (1.0); or (b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million Dollars (USD100,000,000); and 11.1.3 as at the end of each financial quarter the ratio of Total Net Funded Debt to Total Capitalisation of the Group shall not exceed [*]. Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. 11.2 It will be an Event of Default if: 11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or 11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange: (a) any individual or any Third Party: (i) owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Guarantor; or (ii) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has occurred and is continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or (b) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions of the Lenders), (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, means that one (1) or more members of the Lim Family or Apollo has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement). 11.3 The Guarantor shall not and shall procure that no other member of the Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Guarantor may pay dividends to another member of the Group; (ii) the Guarantor may pay dividends in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange, dividends may be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default exists or would result from the payment of such dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 is less than 5.50:1.00. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend. 11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 Schedule 1:
Appears in 1 contract
Samples: Loan Agreement (NCL CORP Ltd.)
Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarter:
11.1.1 at all times the minimum Free Liquidity will be not less than fifty million [**] Dollars (USD50,000,000)[**];
11.1.2 either:
(a) as at the end of each financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) [**] to one (1.0)[**]; or
(b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million [**] Dollars (USD100,000,000)[**]; and
11.1.3 as at the end of each financial quarter the ratio of Total Net Funded Debt to Total Capitalisation of the Group shall not exceed [**]. Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio.
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange:
(a) any individual or any Third Party:
(i) owns legally and/or beneficially and either directly or indirectly at least thirty three [**] per cent (33%) [**] of the ordinary share capital of the Guarantor; or
(ii) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has occurred and is continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
(b) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions of the Lenders), (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, means that one (1) or more members of the Lim Family or Apollo has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement).
11.3 The During any financial year of the Guarantor:
11.3.1 until the date on which the Guarantor becomes a listed company on an Approved Stock Exchange (on which date the restriction contained in this Clause 11.3.1 shall cease to apply), the Guarantor shall not and shall procure that no other member of the Group shall, pay any dividends or make any other distributions in respect of its share capital to any personperson or make any repayments of capital or payments of interest in respect of Financial Indebtedness of an Affiliate of the Guarantor other than payments, distributions, dividends or repayments:
(a) constituting Apollo-Related Transactions;
(b) by the Guarantor which, in any financial year of the Guarantor ending on or after 31 December 2007, do not exceed [*] per cent [*] of the aggregate of:
(i) Consolidated Net Income (if positive) of the Group for such financial year; and
(ii) that portion of Consolidated Net Income (if positive) of the Group in respect of each previous financial year of the Guarantor ending on or after 31 December 2007, retained by the Guarantor and not previously applied pursuant to this Clause 11.3.1(b), provided that the Guarantor shall specify in a written notice to the Agent a calculation (iin reasonable detail) subsidiaries of the Guarantor may pay dividends amount of the current and retained Consolidated Net Income immediately prior to such payment, distribution or dividend and the amount thereof elected to be so applied;
(c) to another member of the NCLC Group; ;
(iid) the Guarantor 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 the relevant jurisdiction of any member of the Group or holder of the Guarantor’s share capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and or
(iiie) after by the later Guarantor which are used to purchase or redeem the share capital of the Guarantor (including related stock appreciation rights or similar securities) held by then present or future directors, consultants, officers or employees of the Guarantor or any other member of the Group or by any employee pension benefit plan upon such person’s death, disability, retirement, or termination of employment or under the terms of any such employee pension benefit plan or any other agreement under which such shares of stock or related rights were issued; PROVIDED THAT the aggregate amount of such purchases or redemptions under this paragraph (e) shall not exceed in any fiscal year [*] Dollars [*] (plus the amount of net proceeds contributed to the Guarantor that were (x) 31 December 2010 received by the Guarantor during such calendar year from sales of equity interests of the Guarantor to directors, consultants, officers or employees of the Guarantor or any other member of the Group in connection with permitted employee compensation and incentive arrangements and (y) the listing of the ordinary capital stock of from any key-man life insurance policies received during such calendar year), which, if not used in any year, may be carried forward to any subsequent calendar year, PROVIDED HOWEVER THAT (whether before or after the Guarantor becomes a listed company on an Approved Stock Exchange, dividends may ) the Group shall not be paid entitled to pay any dividend or make any distribution in respect of any of its share capital or make any repayment of capital or make any payment of interest if an amount not to exceed fifty per cent (50%) Event of the Consolidated Net Income of the Guarantor Default has occurred and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long is continuing or would occur as (I) at the time a result of the payment of such dividenddividend or the making of such distribution, repayment or payment and the Guarantor shall provide the Agent with a certificate signed by the chief financial officer of the Group confirming that no Event of Default exists has occurred and is continuing or would occur as a result from of the payment of such a dividend and (II) after giving effect to such or the making of a distribution, repayment or payment before the dividend is paid or the ratio of Total Net Funded Debt to Consolidated EBITDA for distribution, repayment or payment is made; and
11.3.2 the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 is less than 5.50:1.00. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 11.3 and Schedule 1:
Appears in 1 contract
Samples: Loan Agreement (NCL CORP Ltd.)
Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarter:
11.1.1 at all times the minimum Free Liquidity will be not less than fifty million [**] Dollars (USD50,000,000);[**].
11.1.2 either:
(a) as at the end of each financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) [**] to one (1.0); [**] or
(b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million [**] Dollars (USD100,000,000); [**] and
11.1.3 as at the end of each financial quarter the ratio of Total Net Funded Debt to Total Capitalisation of the Group shall not exceed [**]. Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio.
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange:
(a) any individual or any Third Party:
(i) owns legally and/or beneficially and either directly or indirectly at least thirty three [**] per cent (33%) [**] of the ordinary share capital of the Guarantor; or
(ii) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has occurred and is continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
(b) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions of the Lenders), (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, means that one (1) or more members of the Lim Family or Apollo has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement).
11.3 The During any financial year of the Guarantor:
11.3.1 until the date on which the Guarantor becomes a listed company on an Approved Stock Exchange (on which date the restriction contained in this Clause 11.3.1 shall cease to apply), the Guarantor shall not and shall procure that no other member of the Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries person or make any repayments of capital or payments of interest in respect of Financial Indebtedness of an Affiliate of the Guarantor may pay other than payments, distributions, dividends to another member of the Group; or repayments:
(iia) constituting Apollo-Related Transactions;
(b) by the Guarantor may pay dividends which, in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock financial year of the Guarantor ending on an Approved Stock Exchangeor after 31 December 2007, dividends may be paid in an amount do not to exceed fifty per cent (50%) of the aggregate of:
(i) Consolidated Net Income (if positive) of the Group for such financial year; and
(ii) that portion of Consolidated Net Income (if positive) of the Group in respect of each previous financial year of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on or after 31 December 2007, retained by the date Guarantor and not previously applied pursuant to this Clause 11.3.1(b), provided that the Guarantor shall specify in a written notice to the Agent a calculation (in reasonable detail) of the amount of the current and retained Consolidated Net Income immediately prior to such payment, distribution or dividend and the amount thereof elected to be so applied;
(c) to another member of the NCLC Group;
(d) in respect of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for the relevant jurisdiction of any member of the Group or holder of the Guarantor’s share capital attributable to any member of the Group; or
(e) by the Guarantor which are used to purchase or redeem the share capital of the Guarantor (including related stock appreciation rights or similar securities) held by then present or future directors, consultants, officers or employees of the Guarantor or any other member of the Group or by any employee pension benefit plan upon such person’s death, disability, retirement, or termination of employment or under the terms of any such employee pension benefit plan or any other agreement under which such shares of stock or related rights were issued; PROVIDED THAT the aggregate amount of such purchases or redemptions under this paragraph (e) shall not exceed in any fiscal year [*] Dollars [*] (plus the amount of net proceeds contributed to the Guarantor that were (x) received by the Guarantor during such calendar year from sales of equity interests of the Guarantor to directors, consultants, officers or employees of the Guarantor or any other member of the Group in connection with permitted employee compensation and incentive arrangements and (y) from any key-man life insurance policies received during such calendar year), which, if not used in any year, may be carried forward to any subsequent calendar year, PROVIDED HOWEVER THAT (whether before or after the Guarantor becomes a listed company on an Approved Stock Exchange) the Group shall not be entitled to pay any dividend or make any distribution in respect of any of its share capital or make any repayment of capital or make any payment for which accounts are available, so long of interest if an Event of Default has occurred and is continuing or would occur as (I) at the time a result of the payment of such dividenddividend or the making of such distribution, repayment or payment and the Guarantor shall provide the Agent with a certificate signed by the chief financial officer of the Group confirming that no Event of Default exists has occurred and is continuing or would occur as a result from of the payment of such a dividend and (II) after giving effect to such or the making of a distribution, repayment or payment before the dividend is paid or the ratio of Total Net Funded Debt to Consolidated EBITDA for distribution, repayment or payment is made; and
11.3.2 the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 is less than 5.50:1.00. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 11.3 and Schedule 1:
Appears in 1 contract
Samples: Loan Agreement (NCL CORP Ltd.)
Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarterthat:
11.1.1 at all times the minimum Free Liquidity will be not less than fifty million Dollars (USD50,000,000);
11.1.2 either:
(a) as at 30 September 2005 and as at the end of each subsequent financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) to one (1.0); or
(b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the NCLC Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million Dollars (USD100,000,000); and;
11.1.3 as at 30 September 2006 and as at the end of each subsequent financial quarter quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [*]. Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio.
11.1.4 [*]
11.1.5 [*]:
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate aggregate, do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange:
(ai) any individual or any Third Party:
(iA) owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Guarantor; or
(iiB) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; , and, at the same time as any of the events described in paragraphs (iA) or (iiB) of this Clause has have occurred and is are continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
(bii) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions of the Lenders)Agent, (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, Apollo means that one (1) or more members of the Lim Family or Apollo in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement).
11.3 The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any personperson other than payments, provided that (i) subsidiaries of the Guarantor may pay distributions or dividends to another member of the NCLC Group; (ii) . For the Guarantor may pay dividends avoidance of doubt, distributions made in respect of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each the relevant jurisdiction of any member of the NCLC Group or holder of the Guarantor’s share capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange, dividends may NCLC Group shall not be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default exists or would result from the payment of such dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to restricted by this Clause 9.2 is less than 5.50:1.0011.3. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 11.7 and Schedule 1:
Appears in 1 contract
Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarterthat:
11.1.1 at all times the minimum Free Liquidity will be not less than fifty million Dollars (USD50,000,000);
11.1.2 either:
(a) as at 30 September 2005 and as at the end of each subsequent financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) to one (1.0); or
(b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the NCLC Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million Dollars (USD100,000,000); and
11.1.3 as at 30 September 2006 and as at the end of each subsequent financial quarter quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**]. Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio.
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange:
(a) any individual or any Third Party:
(i) owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Guarantor; or
(ii) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; , and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has have occurred and is are continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
(b) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions each of the Lenders)Agents, (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, Apollo means that one (1) or more members of the Lim Family or Apollo in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement).
11.3 The During any financial year of the Guarantor:
11.3.1 until the date on which the Guarantor becomes a listed company on an Approved Stock Exchange (on which date the restriction contained in this
3.1 shall cease to apply), the Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries person or make any repayments of capital or payments of interest in respect of Financial Indebtedness of an Affiliate of the Guarantor may pay dividends to another member of the Group; other than payments, distributions or dividends:
(iia) constituting Apollo-Related Transactions;
(b) by the Guarantor may pay dividends which, in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock financial year of the Guarantor ending on an Approved Stock Exchangeor after 31 December 2007, dividends may be paid in an amount do not to exceed fifty per cent (50%) of the aggregate of:
(i) Consolidated Net Income (if positive) of the NCLC Group for such financial year; and
(ii) that portion of Consolidated Net Income (if positive) of the NCLC Group in respect of each previous financial year of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on or after 31 December 2007, retained by the date Guarantor and not previously applied pursuant to this Clause 11.3.1(b), provided that the Guarantor shall specify in a written notice to each of the Agents a calculation (in reasonable detail) of the amount of the current and retained Consolidated Net Income immediately prior to such payment payment, distribution or dividend and the amount thereof elected to be so applied;
(c) to another member of the NCLC Group;
(d) in respect of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for the relevant jurisdiction of any member of the NCLC Group or holder of the Guarantor’s share capital attributable to any member of the NCLC Group; or
(e) by the Guarantor which accounts are availableused to purchase or redeem the share capital of the Guarantor (including related stock appreciation rights or similar securities) held by then present or future directors, so long consultants, officers or employees of the Guarantor or any other member of the NCLC Group or by any employee pension benefit plan upon such person’s death, disability, retirement, or termination of employment or under the terms of any such employee pension benefit plan or any other agreement under which such shares of stock or related rights were issued; PROVIDED THAT the aggregate amount of such purchases or redemptions under this paragraph (e) shall not exceed in any fiscal year [*] (plus the amount of net proceeds contributed to the Guarantor that were (x) received by the Guarantor during such calendar year from sales of equity interests of the Guarantor to directors, consultants, officers or employees of the Guarantor or any other member of the NCLC Group in connection with permitted employee compensation and incentive arrangements and (y) from any key-man life insurance policies received during such calendar year), which, if not used in any year, may be carried forward to any subsequent calendar year, PROVIDED HOWEVER THAT (whether before or after the Guarantor becomes a listed company on an Approved Stock Exchange) the NCLC Group shall not be entitled to pay any dividend or make any distribution in respect of any of its share capital if an Event of Default has occurred and is continuing or would occur as (I) at the time a result of the payment of such dividend, dividend or the making of such distribution and the Guarantor shall provide each of the Agents with a certificate signed by the chief financial officer of the NCLC Group confirming that no Event of Default exists has occurred and is continuing or would occur as a result from of the payment of such a dividend and (II) after giving effect to such or the making of a distribution before the dividend is paid or the ratio of Total Net Funded Debt to Consolidated EBITDA for distribution is made; and
11.3.2 the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to Clause 9.2 is less than 5.50:1.00. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 11.3 and Schedule 1:
Appears in 1 contract
Financial Undertakings and Ownership and Control of the Guarantor. 11.1 The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarterthat:
11.1.1 at all times the minimum Free Liquidity will be not less than fifty million Dollars (USD50,000,000);
11.1.2 either:
(a) as at 30 September 2005 and as at the end of each subsequent financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than one point two five (1.25) to one (1.0); or
(b) at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the NCLC Group has maintained a minimum Free Liquidity in an amount which is not less than one hundred million Dollars (USD100,000,000); and;
11.1.3 as at 30 September 2006 and as at the end of each subsequent financial quarter quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**]. Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio.;
11.1.4 [*]
11.1.5 [*]
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the Guarantor or parent company of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Guarantor or parent company of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family (together or individually) and Apollo in the aggregate do not or will not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary share capital of the Guarantor or parent company of the Guarantor on an Approved Stock Exchange:
(a) any individual or any Third Party:
(i) owns legally and/or beneficially and either directly or indirectly at least thirty three per cent (33%) of the ordinary share capital of the Guarantor; or
(ii) has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; , and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has have occurred and is are continuing, the Lim Family (together or individually) and Apollo in the aggregate do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or
(b) the Guarantor (or such parent company) ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent (acting on the instructions each of the Lenders)Agents, (and, for the purpose of this Clause 11.2 “control” of any company, limited partnership or other legal entity (a “body corporate”) by a member of the Lim Family and Apollo, Apollo means that one (1) or more members of the Lim Family or Apollo in the aggregate has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement).
11.3 The Guarantor shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any personperson other than payments, provided that (i) subsidiaries of the Guarantor may pay distributions or dividends to another member of the NCLC Group; (ii) . For the Guarantor may pay dividends avoidance of doubt, distributions made in respect of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each the relevant jurisdiction of any member of the NCLC Group or holder of the Guarantor’s share capital stock with respect to income taxable as a result of any member of the Group being treated as a pass-through entity or attributable to any member of the Group; and (iii) after the later of (x) 31 December 2010 and (y) the listing of the ordinary capital stock of the Guarantor on an Approved Stock Exchange, dividends may NCLC Group shall not be paid in an amount not to exceed fifty per cent (50%) of the Consolidated Net Income of the Guarantor and its subsidiaries for the period commencing on 1 January 2010 and ending on the date prior to such payment for which accounts are available, so long as (I) at the time of the payment of such dividend, no Event of Default exists or would result from the payment of such dividend and (II) after giving effect to such dividend the ratio of Total Net Funded Debt to Consolidated EBITDA for the four (4) consecutive financial quarters last ended for which accounts have been provided to the Agent pursuant to restricted by this Clause 9.2 is less than 5.50:1.0011.3. The Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrower’s shareholder(s) (if such shareholder is not the Guarantor) by way of dividend.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3, Clause 11.6 11.7 and Schedule 1:
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Samples: Loan Agreement (NCL CORP Ltd.)
