SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of December 18, 2023 (this “Supplemental Indenture”), by and among NCL Corporation Ltd. (the “Issuer”), the guarantors party hereto (the “Guarantors”) and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and security agent (in such capacity, the “Security Agent”).
W I T N E S S E T H
WHEREAS, the Issuer, the Guarantors, the Trustee and the Security Agent have heretofore executed and delivered an Indenture, dated as of February 22, 2023 (the “Base Indenture”), providing for the issuance of an aggregate principal amount of $250,000,000 of 9.75% Senior Secured Notes due 2028 of the Issuer (the “Notes”), as supplemented by the First Supplemental Indenture, dated as of October 11, 2023 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and between the Issuer and the Trustee;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer, the Guarantors, the Trustee and the Security Agent are authorized to amend or supplement the Indenture with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (collectively, the “Consents”);
WHEREAS, Holders that are beneficial owners of at least a majority in aggregate principal amount of the Notes have consented to the execution and delivery of this Supplemental Indenture and delivered to the Issuer, the Guarantors and the Trustee that certain Consent Letter, dated as of the date hereof, providing for Consents to effectuate the amendments to the Indenture set forth in Section 2.01 hereof;
WHEREAS, the Issuer and the Guarantors are duly authorized to enter into this Supplemental Indenture; and
WHEREAS, all acts, conditions, proceedings and requirements necessary to make this Supplemental Indenture a valid, binding and legal agreement enforceable in accordance with its terms for the purposes expressed herein have been duly done and performed.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
DEFINITIONS
AMENDMENTS TO THE INDENTURE
MISCELLANEOUS
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facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign) shall constitute effective execution and delivery of this Supplemental Indenture and may be used in lieu of originals for all purposes. For the avoidance of doubt, the words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Supplemental Indenture or any document to be signed in connection with this Supplemental Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
NCL CORPORATION LTD.
as Issuer
By: | /s/ Xxxxxx Xxxxxx |
KRYSTALSEA LIMITED
as Guarantor
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive Vice President, General Counsel & Secretary
GREAT STIRRUP CAY LIMITED
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
NCL US IP CO 1, LLC
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
NCL UK IP CO LTD
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
NCL US IP CO 2, LLC
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
SEVEN SEAS CRUISES LTD.
as Guarantor
[Signature Page to Second Supplemental Indenture]
By: | /s/ Xxxxxx Xxxxxx |
OCEANIA CRUISES LTD.
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
PRESTIGE CRUISE HOLDINGS LTD.
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
PRESTIGE CRUISES INTERNATIONAL LTD.
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
ARRASAS LIMITED
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
NCL (BAHAMAS) LTD.
as Guarantor
By: | /s/ Xxxxxx Xxxxxx |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee and Security Agent
[Signature Page to Second Supplemental Indenture]
By: | /s/ Xxxxxx X. Xxxx |
[Signature Page to Second Supplemental Indenture]
Exhibit A
Indenture
NCL CORPORATION LTD.,
as Issuer,
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee, Principal Paying Agent, Transfer Agent,
Registrar and Security Agent,
INDENTURE
Dated as of February 22, 2023
FIRST-XXXX XXXXXX SECURED NOTES
TABLE OF CONTENTS
________________________
Page
Article One
Definitions and Incorporation by Reference
Article Two
The Notes
Article Three
Redemption; Offers to Purchase
i
Article Four
Covenants
Article Five
Merger, Amalgamation, Consolidation or Sale of Assets
Article Six
Defaults and Remedies
ii
Article Seven
Trustee and Security Agent
Article Eight
Defeasance; Satisfaction and Discharge
Article Nine
Amendments and Waivers
iii
Schedules
Schedule I | – | Guarantors |
Schedule II | – | Security Documents |
Schedule III | – | Agreed Security Principles |
Schedule IV | – | Collection Accounts |
| | |
Exhibits
Exhibit A-1 | – | Form of Class A Note |
Exhibit A-2 | – | Form of Class B Note |
Exhibit A-3 | – | Form of Backstop Note |
Exhibit B | – | Form of Transfer Certificate for Transfer from Restricted Global Note to Regulation S Global Note |
Exhibit C | – | Form of Transfer Certificate for Transfer from Regulation S Global Note to Restricted Global Note |
Exhibit D | – | Form of Supplemental Indenture |
| | |
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INDENTURE, dated as of February 22, 2023 (the “Signing Date”), among NCL Corporation Ltd., an exempted company incorporated under the laws of Bermuda and tax resident in the United Kingdom (the “Issuer”), the Guarantors party hereto, U.S. Bank Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (in such capacity, the “Trustee”), as Principal Paying Agent, as Transfer Agent, as Registrar and as Security Agent (in such capacity, the “Security Agent”), and, for the purposes of Section 7 herein, FirstCaribbean International Trust Company (Bahamas) Limited, as Supplemental Security Agent for the Security Agent in the Commonwealth of The Bahamas, and Atlantic Bank Limited, as Supplemental Security Agent for the Security Agent in Belize.
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its (i) Class A Notes (as defined below), (ii) Class B Notes (as defined below) and (iii) Backstop Notes (as defined below) (collectively, the “Notes”).
The Issuer has received good and valuable consideration for the execution and delivery of this Indenture. All necessary acts and things have been done to make (i) the Notes, when duly issued and executed by the Issuer and authenticated and delivered hereunder, the legal, valid and binding obligations of the Issuer and (ii) this Indenture a legal, valid and binding agreement of the Issuer in accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
“2028 Notes” means the 6.125% senior notes due 2028 issued by NCL Finance, Ltd.
“2029 Notes” means the 7.750% senior notes due 2029 issued by the Issuer.
“Access Agreement” means each of the following agreements entered into as of the Signing Date, pursuant to which Great Stirrup Cay Limited and Krystalsea Limited, as applicable, shall earn fees in exchange for providing the Issuer and its Restricted Subsidiaries access to Great Stirrup Cay Island and Harvest Caye Island, as applicable: (i) the Access Agreement among Great Stirrup Cay Limited, NCL (Bahamas) Ltd., an exempted company incorporated under the laws of Bermuda (“NCL (Bahamas)”), Oceania Cruises and Seven Seas; and (ii) the Access Agreement among Krystalsea Limited, NCL (Bahamas), Oceania Cruises and Seven Seas.
“Acquired Debt” means, with respect to any specified Person:
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“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“After-Acquired Property” means any property of any Secured Guarantor acquired after the Signing Date that is intended to be subject to the Lien created by any of the Security Documents but is not so subject.
“Agreed Security Principles” means the Agreed Security Principles as set forth on Schedule III hereto.
“Apollo” means, collectively, Apollo Capital Management, L.P. and one or more investment funds, separate accounts and other entities affiliated with or controlled, managed and/or advised by Apollo Capital Management, L.P. or its affiliates.
“Appraised Value” of any Vessel at any time means the value of such Vessel as set forth on an independent appraisal (conducted no more than 12 months prior to any determination of the Appraised Value) and relied upon by the Issuer in good faith.
“ARCA” means the Fifth Amended and Restated Credit Agreement, dated as of May 8, 2020, among NCL Corporation Ltd., as borrower, Voyager Vessel Company, LLC, as co-borrower, the subsidiary guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and a syndicate of other banks party thereto as joint bookrunners, arrangers, co-documentation agents and lenders, as amended by that certain Amendment No. 1, dated as of January 29, 2021, by that certain Amendment No. 2, dated as of March 25, 2021, by that certain Amendment No. 3, dated as of November 12, 2021, and by that certain Amendment No. 4, dated as of December 6, 2022, and as may further be amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 4.06) or altering the maturity thereof.
“Asset Sale” means:
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Notwithstanding the preceding provisions, none of the following items will be deemed to be an Asset Sale:
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“Attributable Debt” means, with respect to any sale and leaseback transaction, at the time of determination, the present value (discounted at the interest rate reasonably determined in good faith by a responsible financial or accounting officer of the Issuer to be the interest rate implicit in the lease determined in accordance with GAAP, or, if not known, at the Issuer’s incremental borrowing rate) of the total obligations of the lessee of the property subject to such lease for rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended, or until the earliest date on which the lessee may terminate such lease without penalty or upon payment of penalty (in which case the rental payments shall include such penalty), after excluding from such rental payments all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water, utilities and similar charges; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.”
“Authority” means any competent regulatory, prosecuting, Tax or governmental authority in any jurisdiction.
“Backstop Issue Date” means the date on which the Backstop Notes are issued.
“Backstop Maturity Date” shall have the meaning ascribed to it in the Backstop Notes.
“Backstop Notes” means the 8.00% senior secured notes issued by the Issuer on the Backstop Issue Date, if any.
“Backstop Par Call Date” shall have the meaning ascribed to it in the Backstop Notes.
“Bankruptcy Law” means Title 11 of the United States Code, as amended, or any similar U.S. federal or state law or the laws of any other jurisdiction (or any political subdivision thereof) relating to bankruptcy, insolvency, winding up, voluntary or judicial liquidation, composition with creditors, reprieve from payment, controlled management, fraudulent conveyance, general settlement with creditors, reorganization or similar or equivalent laws affecting the rights of creditors generally. For the avoidance of doubt, the provisions of the UK Companies Act 2006 governing a solvent reorganisation or a voluntary liquidation thereunder shall not be deemed to be Bankruptcy Laws.
“beneficial owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the U.S. Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the U.S. Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.
“Board of Directors” means:
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“Book-Entry Interest” means a beneficial interest in a Global Note held through and shown on, and transferred only through, records maintained in book-entry form by DTC and its nominees and successors.
“Business Day” means a day other than a Saturday, Sunday or other day on which banking institutions in New York or a place of payment under this Indenture are authorized or required by law, regulation or executive order to close.
“BVI Act” means the BVI Business Companies Act, 2004 (as amended).
“BVI Register of Charges” means the register of charges of Krystalsea Limited maintained by Krystalsea Limited in accordance with Section 162 of the BVI Act.
“BVI Registrar of Corporate Affairs” means the Registrar of Corporate Affairs of the British Virgin Islands appointed under Section 229 of the BVI Act.
“Capital Lease Obligation” means, with respect to any Person, any obligation of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed), which obligation is required to be classified and accounted for as a finance lease obligation under GAAP, and, for purposes of this Indenture, the amount of such obligation at any date will be the capitalized amount thereof at such date, determined in accordance with GAAP and the Stated Maturity thereof will be the date of last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Capital Stock” means:
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“Cash Equivalents” means:
“Change of Control” means the occurrence of either of the following:
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“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.
“Class A First Call Date” shall mean February 22, 2025.
“Class A Issue Date” means February 22, 2023.
“Class A Notes” means the 9.75% senior secured notes due 2028 to be issued by the Issuer on the Class A Issue Date.
“Class A Par Call Date” shall mean February 22, 2026.
“Class A Record Date,” for the interest payable on any Interest Payment Date, means the February 1, May 1, August 1 and November 1 (in each case, whether or not a Business Day) preceding such Interest Payment Date.
“Class B First Call Date” shall have the meaning ascribed to it in the Class B Notes.
“Class B Issue Date” means the date on which the Class B Notes are issued.
“Class B Notes” means the senior secured notes due 2028 issued by the Issuer on the Class B Issue Date, if any.
“Class B Par Call Date” shall have the meaning ascribed to it in the Class B Notes.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means the following:
(a)all assets (other than certain excluded assets to be set forth in the Security Documents) of Great Stirrup Cay Limited, a company organized under the laws of the Commonwealth of The Bahamas (“Great Stirrup Cay Limited”), Krystalsea Limited, a BVI business company incorporated under the laws of the British Virgin Islands with company number 1056308 and with its registered office address at Tortola Pier Park, Building 0, Xxxxxx Xxxxx, Xxxxxxxx Xxx 0, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx (“Krystalsea Limited”), NCL US IP Co 1, LLC, a Delaware limited liability company (“IPCo Parent”), NCL US IP Co 2, LLC, a Delawarean exempted limited liability company (“UScontinued under the laws of Bermuda (“Bermuda IPCo”), and the U.S. Branch of NCL UK IP Co Ltd, a private limited company organized under the laws of England and Wales (“UK IPCo”);
(b)all Customer Data and other Intellectual Property owned and controlled by Seven Seas Cruises S. de X.X., aLtd., an exempted company organizedcontinued under the laws of PanamaBermuda (“Seven Seas”), Oceania Cruises S. de X.X., aLtd., an exempted company organizedcontinued under the laws of PanamaBermuda (“Oceania Cruises”), and Prestige Cruise Holdings S. de X.X., aLtd., an exempted company organizedcontinued under the laws of PanamaBermuda (“Prestige Holdings”);
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(c)an equitable share mortgage (the “BVI Equitable Mortgage”) granted by Belize Investments Limited, a company organized under the laws of St. Lucia (“Belize Investments Limited”), in respect of all of the issued shares of Krystalsea Limited (the “Krystalsea Pledged Equity”); and
(d)a share charge granted by NCL (Bahamas) Ltd., an exempted company incorporated under the laws of Bermuda (“NCL (Bahamas)”), over the entire issued shares of Great Stirrup Cay Limited (the “Great Stirrup Pledged Equity”).
“Commission” means the U.S. Securities and Exchange Commission.
“Consolidated EBITDA” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income, without duplication:
minus (b) the sum of (without duplication and to the extent the amounts described in this clause (b) increased such Consolidated Net Income for the respective period for which EBITDA is being determined) non-cash items increasing Consolidated Net Income of the Issuer and the Subsidiaries for such period (but excluding any such items (i) in respect of which cash was received in a prior period or will be received in a future period or (ii) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period).
“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) attributable to such Person and its Subsidiaries which are Restricted
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Subsidiaries for such period, determined on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
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“Consolidated Total Indebtedness” means, at any date, the sum of (without duplication) all Indebtedness (other than letters of credit, to the extent undrawn) consisting of Capital Lease Obligations, Indebtedness for borrowed money and Disqualified Stock of the Issuer and the Subsidiaries determined on a consolidated basis on such date in accordance with GAAP.
“Consolidated Total Leverage Ratio” means as of any date of determination, the ratio of Consolidated Total Indebtedness on such day less the unrestricted cash and Permitted Investments to Consolidated EBITDA of the Issuer and its Restricted Subsidiaries as of and for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation; in each case, with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“continuing” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“Credit Facilities” means one or more debt facilities, instruments or arrangements incurred by the Issuer or any Restricted Subsidiary (including but not limited to the ARCA) with banks, other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit, notes or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative
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agent and lenders or another administrative agent or agents or trustees or other banks or institutions and whether provided under the ARCA or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facilities” shall include any agreement or instrument (1) changing the maturity of any Indebtedness incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Issuer as additional borrowers, issuers or guarantors thereunder, (3) increasing the amount of Indebtedness incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian, administrator or similar official under any Bankruptcy Law.
“Customary Intercreditor Agreement” means an intercreditor agreement among the Trustee and the trustee or other representative of any holders of other Indebtedness of the Issuer or the Guarantors permitted hereunder, providing for, among other things, the subordination of the lien priority of such other Indebtedness to the lien priority of the Notes to the extent required hereunder and which intercreditor agreement, (a) if Apollo beneficially owns a majority in aggregate principal amount of the Notes outstanding as of the date of execution of such intercreditor agreement, or any amendment or modification thereto, is in form and substance reasonably satisfactory to Holders of not less than a majority in aggregate principal amount of the Notes outstanding as of such date, or (b) if Apollo beneficially owns less than a majority in aggregate principal amount of the Notes outstanding as of the date of execution of such intercreditor agreement, or any amendment or modification thereto, contains terms which are customary in the good faith judgment of the Issuer as evidenced in an Officer’s Certificate.
“Customer Data” means all of the rights in customer data created or updated during or after 2008 through the date on which all Note Obligations have been paid in full in cash (or such earlier date on which the Notes shall be satisfied and discharged pursuant to Article Eight) and held by (a) USBermuda IPCo with respect to U.S. residents, (b) the U.S. Branch of UK IPCo with respect to and U.K. residents, and (cb) Seven Seas, Oceania Cruises and Prestige Holdings with respect to residents in any jurisdiction, in each case of (a) throughand (cb), including all intellectual property rights in or with respect to the foregoing.
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Definitive Registered Note” means, with respect to the Notes, a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A-1, in the case of the Class A Notes, Exhibit A-2, in the case of the Class B Notes, or Exhibit A-3, in the case of the Backstop Notes, each as attached hereto, except that such Note shall not bear the legends applicable to Global Notes and shall not have the “Schedule of Principal Amount in the Global Note” attached thereto.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the six-month anniversary of the date that the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the issuer thereof to repurchase such Capital Stock
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upon the occurrence of a “change of control” or an “asset sale” will not constitute Disqualified Stock if the terms of such Capital Stock provide that the issuer thereof may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.08. For purposes hereof, the amount of Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock, such Fair Market Value to be determined as set forth herein.
“DTC” means The Depository Trust Company, a New York corporation, its nominees and successors.
“ECA Entities” means any entity that directly owns an ECA Vessel and any Vessel with an Appraised Value in excess of $100.0 million that is purchased with the proceeds of any sale of any ECA Vessel or ECA Entity.
“ECA Facilities” means the agreements governing Existing Indebtedness, other than the ARCA and the Existing Notes, under which the obligations are secured by Liens on one or more ECA Vessels.
“ECA Vessels” means Norwegian Prima, Norwegian Breakaway, Norwegian Getaway, Norwegian Escape, Norwegian Joy, Norwegian Bliss, Norwegian Encore, Marina, Riviera, Seven Seas Explorer, Seven Seas Splendor, Grandeur, Viva, Xxxxxxxx 3, Xxxxxxxx 4, Xxxxxxxx 5, Xxxxxxxx 6, Vista, Allura 2 and any Vessel with an Appraised Value in excess of $100.0 million that is purchased with the proceeds of any sale of any ECA Vessel or ECA Entity.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Event of Loss” means the actual or constructive total loss, arranged or compromised total loss, casualty, destruction, condemnation, confiscation, requisition, seizure or forfeiture of, or other taking of title or use of, any Vessel or any property or asset constituting Collateral, as applicable.
“Exchangeable Notes” means the 6.00% exchangeable senior notes due 2024 issued by the Issuer, the 5.375% exchangeable senior notes due 2025 issued by the Issuer, the 1.125% exchangeable senior notes due 2027 issued by the Issuer and the 2.50% exchangeable senior notes due 2027 issued by the Issuer, each as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the existing holders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount of notes issued thereunder (in each case subject to compliance with Section 4.06) or altering the maturity thereof.
“Existing Indebtedness” means all Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the Signing Date (but not including any Class A Notes, Class B Notes, any Backstop Notes or any Uncommitted Second Lien Indebtedness).
“Existing Notes” means the Existing Secured Notes, the Exchangeable Notes and the Unsecured Notes, collectively.
“Existing Secured Notes” means the 5.875% senior secured notes due 2027 issued by the Issuer and the 8.375% senior secured notes due 2028 issued by the Issuer, each as amended, restated,
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supplemented, waived, replaced (whether or not upon termination, and whether with the existing holders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount of notes issued thereunder (in each case subject to compliance with Section 4.06) or altering the maturity thereof.
“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress of either party, determined in good faith by the Issuer’s Chief Executive Officer or responsible accounting or financial officer of the Issuer.
“FATCA” means current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above).
“FATCA Withholding” means any withholding or deduction required under FATCA.
“Fitch” means Fitch Ratings Inc.
“Fixed Charge Calculation Date” has the meaning assigned to such term in the definition of “Fixed Charge Coverage Ratio.”
“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Issuer or any of its Restricted Subsidiaries incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems Disqualified Stock or preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock, as if the same had occurred at the beginning of the applicable four-quarter period except that any Indebtedness incurred in connection with the financing of a new Vessel shall be deemed to have not been incurred until the relevant delivery date for such Vessel, after which delivery date such Indebtedness shall be deemed to have been incurred on the first day of such four-quarter reference period; provided, however, that the pro forma calculation of Fixed Charges shall not give effect to (i) any Permitted Debt incurred on the Fixed Charge Calculation Date or (ii) the discharge on the Fixed Charge Calculation Date of any Indebtedness to the extent that such discharge results from the proceeds of Permitted Debt.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP) and any operational changes, business realignment projects or initiatives, restructurings or reorganizations that the Issuer or any Restricted Subsidiary has determined to make and/or made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and other operational changes, business realignment projects or initiatives, restructurings or reorganizations which
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would include cost savings resulting from head count reduction, closure of facilities and similar operational and other cost saving (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. On or following the delivery date of any new Vessel and for so long as such four-quarter reference period includes such delivery date, in the event that the Issuer or any Subsidiary took delivery of any new Vessel during such four-quarter reference period, Consolidated EBITDA shall include the projected Consolidated EBITDA (based on reasonable assumptions) for such Vessel as if such Vessel had been in operation on the first day of such four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation, amalgamation, discontinued operation, operational change, business realignment project or initiative, restructuring or reorganization that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger, amalgamation, consolidation, operational change, business realignment project or initiative, restructuring or reorganization had occurred at the beginning of the applicable four-quarter period. If since the beginning of such period any Restricted Subsidiary is designated an Unrestricted Subsidiary or any Unrestricted Subsidiary is designated a Restricted Subsidiary, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such designation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Issuer as set forth in an Officer’s Certificate, to reflect operating expense reductions and other operating improvements, synergies or cost savings reasonably expected to result from the applicable event. Any calculation of the Fixed Charge Coverage Ratio may be made, at the option of the Issuer, either (i) at the time the Board of Directors of the Issuer approves the action necessitating the calculation of the Fixed Charge Coverage Ratio or (ii) at the completion of such action necessitating the calculation of the Fixed Charge Coverage Ratio.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
For purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars based on the average exchange rate for such currency for the most recent twelve-month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
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“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
Notwithstanding any of the foregoing, Fixed Charges shall not include (i) any payments on any operating leases, (ii) any non-cash interest expense resulting from the application of Accounting Standards Codification Topic 470-20 “Debt — Debt with Conversion Options— Recognition” or (iii) the interest component of all payments associated with Capital Lease Obligations.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Signing Date. For the purposes of this Indenture, the term “consolidated” with respect to any Person shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.
“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business, of all or any part of any Indebtedness (whether arising by agreements to keep-well, to take or pay or to maintain financial statement conditions, pledges of assets, sureties or otherwise).
“Guarantors” means any Restricted Subsidiary that guarantees the Notes in accordance with the provisions of this Indenture, and their respective successors and assigns, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
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“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:
“Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the nominee of DTC.
“H.15” has the meaning assigned to such term in the definition of “Treasury Rate.”
“Indebtedness” means, with respect to any specified Person (excluding accrued expenses and trade payables), without duplication:
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
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The term “Indebtedness” shall not include:
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
“Intellectual Property” means:
(a)with respect to each Specified Guarantor, collectively, all Copyrights, all Patents and all Trademarks, in each case, whether now owned or hereafter acquired by such Specified Guarantor, together with (i) all inventions, processes, production methods, proprietary information, know-how and trade secrets; (ii) all licenses or user or other agreements granted to such Specified Guarantor with respect to any of the foregoing, in each case, whether now or hereafter owned or used; (iii) all information, customer lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, recorded knowledge, surveys, engineering reports, test reports, manuals, materials standards, processing standards, performance standards, catalogs, computer and automatic machinery software and programs; (iv) all field repair data, sales data and other information relating to sales or service of products now or hereafter manufactured; (v) all accounting information and all media in which or on which any information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data; (vi) all licenses, consents, permits, variances, certifications and approvals of governmental agencies now or hereafter held by such Specified Guarantor; and (vii) all causes of action, claims and warranties now or hereafter owned or acquired by such Specified Guarantor in respect of any of the items listed above; and
(b)with respect to each of Oceania Cruises, Seven Seas and Prestige Holdings, collectively, all Copyrights, all Patents and all Trademarks in any jurisdiction throughout the world, in each case, to the extent registered or subject to application for registration that is pending, whether now owned or hereafter acquired by such Secured Guarantor, together with (i) lists of existing or prospective customers and all data
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or information relating thereto; (ii) all licenses or user or other agreements granted to such Secured Guarantor with respect to any of the foregoing, in each case whether now or hereafter owned or used; and (iii) all causes of action, claims and warranties now or hereafter owned or acquired by such Secured Guarantor in respect of any of the items listed above.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the Class A Notes, the Class B Notes or the Backstop Notes, as applicable.
“Investment Grade” means (1) with respect to S&P or Fitch, a rating equal to or higher than BBB- (or the equivalent), (2) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent) and (3) with respect to any additional Rating Agency or Rating Agencies selected by the Issuer, the equivalent investment grade credit rating.
“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations, but excluding advances or extensions of credit to customers or suppliers made in the ordinary course of business), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as Investments on a balance sheet prepared in accordance with GAAP. The acquisition by the Issuer or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.08. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
“IP License” means each of the followingthe Intellectual Property Matters aAgreements, entered into as of the Signing Date,December 18, 2023, between NCL (Bahamas), the Issuer, Bermuda IPCo and UK IPCo pursuant to which the Issuer, among other matters, NCL (Bahamas) received a license to certain of the Pledged IP from US IPCo or the U.S. Branch of UK IPCo, as applicable: (i) the Amended and Restated Trade and Asset Transfer Agreement between the Issuer and US IPCo; (ii) the Amended and Restated Trade and Asset Transfer Agreement between the Issuer and the U.S. Branch of UK IPCo; (iii) the Amended and Restated Marketing Services and Trademark License Agreement between the Issuer and US IPCo; and (iv) the Amended and Restated Marketing Services and Trademark License Agreement between the Issuer and the U.S. Branch of UKBermuda IPCo.
“Issuer Order” means a written order signed in the name of the Issuer by any Person authorized by a resolution of the Board of Directors of the Issuer.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
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“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers or employees of the Issuer or any Restricted Subsidiary:
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Mortgaged Property” means each of (i) Great Stirrup Cay Island and (ii) Harvest Caye Island.
“NCL Holdings” means Norwegian Cruise Line Holdings Ltd., the direct parent company of the Issuer.
“Net Book Value” means, with respect to any asset or property at any time, the net book value of such asset or property as reflected on the most recent balance sheet of the Issuer at such time, determined on a consolidated basis in accordance with GAAP.
“Net Proceeds” means (a) with respect to any Asset Sale or Event of Loss, including any sale, lease, conveyance or other disposition by the Issuer or any of its Restricted Subsidiaries of, or any Event of Loss relating to, any assets comprising part of the Collateral, the aggregate cash proceeds and Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries in respect of such Asset Sale or Event of Loss (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale); provided that such amount shall be net of the direct costs relating to such Asset Sale or Event of Loss, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale or Event of Loss, taxes paid or payable as a result of the Asset Sale or Event of Loss, any charges, payments or expenses incurred in connection with an Asset Sale or Event of Loss (including, without limitation, (i) any exit or disposal costs, (ii) any repair, restoration or environmental remediation costs, charges or payments, (iii) any penalties or fines resulting from such Event of Loss, (iv) any severance costs resulting from such Event of Loss, (v) any costs related to salvage, scrapping or related activities and (vi) any fees, settlement payments or other charges related to any litigation or administrative proceeding resulting from such Event of Loss) and any reserve for adjustment or indemnification obligations in respect of the sale price of such asset or assets established in accordance with GAAP; provided, further, that if no Event of Default exists, the Issuer may, promptly following receipt of any cash proceeds or Cash Equivalents in respect of any Event of Loss relating to any real property or related assets comprising part of the Collateral, deliver an Officer’s Certificate to the Trustee setting forth the Issuer’s intention to use any portion of such proceeds to repair or rebuild such assets of the applicable Secured Guarantor within 450 days after the receipt thereof, in which case such proceeds shall not constitute Net Proceeds subject to Section 3.01(b) (provided that any portion of such proceeds not actually used for such repair or rebuild shall constitute Net Proceeds subject to Section 3.01(b)); provided, further, still that any such Net Proceeds shall be maintained in a Collection Account subject to a Control Agreement pending reinvestment in accordance with the preceding proviso and (b) with respect to any issuance or incurrence of Indebtedness of the Issuer or any of its Restricted Subsidiaries, the cash proceeds thereof, net of (i) any fees, underwriting discounts and commissions, premiums and other costs and expenses incurred in connection with such issuance and (ii) attorney’s fees, investment banking fees, survey costs, title insurance
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premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses, and brokerage, consultant, accountant, and other customary fees. To the extent the amounts that must be netted against any cash proceeds and Cash Equivalents cannot be reasonably determined by the Issuer with respect to any Asset Sale or Event of Loss not relating to the Collateral, such cash proceeds and Cash Equivalents shall not be deemed received until such amounts to be netted are known by the Issuer.
“New Vessel Aggregate Secured Debt Cap” means the sum of each of the New Vessel Secured Debt Caps (with such New Vessel Aggregate Secured Debt Cap to be expressed as the sum of the euro and U.S. dollar denominations of the New Vessel Secured Debt Caps reflected in the New Vessel Aggregate Secured Debt Cap).
“New Vessel Financing” means any financing arrangement (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder), entered into by the Issuer or a Restricted Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Capital Stock of entities owning or to own Vessels, provided that any Vessel contracted for construction, under construction or completed on the Signing Date is not a Vessel to which this definition applies.
“New Vessel Secured Debt Cap” means, in respect of a New Vessel Financing, no more than 90% of the contract price (including any amendment to the contract price) for the acquisition and any other Ready for Sea Cost of the related Vessel (and 100% of any related export credit insurance premium), expressed in euros or U.S. dollars, as the case may be, being financed by such New Vessel Financing.
“Note Documents” means the Notes, the Note Guarantees, this Indenture, the Security Documents, eachthe IP License, each Access Agreement and any other agreements, documents or instruments related to any of the foregoing, as they may be amended, restated, modified, renewed, supplemented, refunded, replaced or refinanced, from time to time.
“Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.
“Note Obligations” means the Obligations of the Issuer and the Guarantors under the Note Documents.
“Obligations” means any principal, interest, penalties, fees, premiums (including Redemption Premiums), indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
“Officer” means, with respect to any Person, the Chairman or Vice-Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, an Executive Vice President, a Senior Vice President or Vice President, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, an Assistant Secretary, or any individual designated by the Board of Directors, of such Person.
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer.
“Opinion of Counsel” means a written opinion from legal counsel, subject to customary exceptions and qualifications. The counsel may be an employee of or counsel to the Issuer.
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“Patents” means all patents and patent applications, including the inventions and improvements described and claimed therein, and all improvements thereto, together with the parents, reissues, divisionals, provisionals, continuations, re-examinations, renewals, extensions and continuations in part thereof, all income, royalties, damages and payments now or hereafter due and/or payable with respect thereto, all damages and payments for past or future infringements thereof and rights to sue therefor, and all rights corresponding thereto throughout the world.
“Permitted Alternative Debt” means any Indebtedness incurred by the Issuer or any Secured Guarantor as an alternative to the Class B Notes, the Backstop Notes or the Uncommitted Second Lien Indebtedness; provided that (A) such Indebtedness is (x) unsecured, (y) secured by liens on Collateral on a junior lien basis to the Liens securing the Note Obligations or (z) subject to the following clause (B), secured by liens on Collateral on a pari passu basis to the Liens securing the Note Obligations, (B) the aggregate principal amount of Permitted Alternative Debt at any time outstanding that is secured by liens on Collateral on a pari passu basis to the Liens securing the Note Obligations shall not exceed $750.0 million, (C) such Indebtedness is not guaranteed by or otherwise an obligation of any Person that is not the Issuer or a Secured Guarantor, (D) such Indebtedness is not issued under this Indenture and, if secured, is not secured by any Security Document and (E) if secured, such Indebtedness is not secured by any assets or property that does not constitute Collateral and is at all times subject to a Customary Intercreditor Agreement.
“Permitted Business” means (a) in respect of the Issuer and its Restricted Subsidiaries, any businesses, services or activities engaged in by the Issuer or any of the Restricted Subsidiaries on the Signing Date and (b) any businesses, services and activities engaged in by the Issuer or any of its Restricted Subsidiaries that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.
“Permitted Collateral Liens” means:
(a)Liens on the Collateral described in one or more of clauses (f), (g), (h), (i), (l), (n), (o) and (dd) (but to the extent related to the foregoing clauses) of the definition of “Permitted Liens” (it being understood that clause (o) shall be limited solely to such licenses and sublicenses described in clause (o) that are non-exclusive);
(b)Liens on the Collateral, other than Liens to secure Indebtedness for borrowed money, in an aggregate amount of up to $25.0 million;
(c)Liens on the Collateral to secure Uncommitted Second Lien Indebtedness permitted to be incurred pursuant to Section 4.06(b)(xxi); provided such Liens are secured by the Collateral on a junior basis to the Liens on the Collateral securing the Note Obligations and at all times subject to a Customary Intercreditor Agreement;
(d)Liens on the Collateral to secure Permitted Alternative Debt permitted to be incurred pursuant to Section 4.06(b)(xx); provided such Liens are secured by Collateral on a pari passu or junior basis to the Liens on the Collateral securing the Note Obligations and at all times subject to a Customary Intercreditor Agreement;
(e)perpetual licenses granted under eachthe IP License; and
(f)the existing mortgage dated February 17, 1986 on Great Stirrup Cay Island, provided that such mortgage secures no outstanding obligations.
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“Permitted Intercompany Debt” means (i) any Indebtedness incurred by a Specified Guarantor from the Issuer or one of its Restricted Subsidiaries to finance the operations of such Specified Guarantor, (ii) any Indebtedness incurred between Krystalsea Limited and Great Stirrup Cay Limited or (iii) any Indebtedness incurred among any of IPCo Parent, Bermuda IPCo and UK IPCo, provided that all such Indebtedness under clauses (i), (ii) and (iii) (A) is unsecured, (iiB) is expressly subordinated to the prior payment in full in cash of all Note Obligations and (iiiC) may not be repaid in cash except to the extent no Event of Default has occurred and is continuing, by such Specified Guarantor with cash in its Collection Accounts in accordance with Section 4.08 or Section 4.09, as applicable.
“Permitted Investments” means:
(i)such Person becomes a Restricted Subsidiary; or
(ii)such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary;
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Notwithstanding anything to the contrary set forth herein, no Investment shall constitute a Permitted Investment if the effect of such Investment is to cause (i) the sale, lease, transfer or other disposition, directly or indirectly, of assets or property constituting Collateral by a Secured Guarantor to any Subsidiary of the Issuer other than a Secured Guarantor or (ii) any Collateral of any Specified Guarantor to be held by any Subsidiary of the Issuer other than a Specified Guarantor. Notwithstanding the preceding sentence, if no Event of Default exists, a Specified Guarantor shall be permitted to make any Investment in the Issuer or any of its Restricted Subsidiaries; provided such Investment is limited to such Specified Guarantor’s cash in its Collection Accounts (other than Net Proceeds required to be held therein pursuant to this Indenture) and is used for working capital purposes of the Issuer or any of its Restricted Subsidiaries, including debt service and shipbuilding payments.
“Permitted Jurisdictions” means (i) any state of the United States of America, the District of Columbia or any subdivision thereof or territory of the United States of America, (ii) Panama, (iii) Bermuda, (iv) the Commonwealth of The Bahamas, (v) the Isle of Man, (vi) the Xxxxxxxx Islands, (vii) Liberia, (viii) Barbados and (ix) the Cayman Islands.
“Permitted Liens” means:
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“Permitted PGN Debt” means Priority Guaranty Indebtedness incurred by a Priority Guarantor on or after the Signing Date in an aggregate principal amount at any time outstanding not to exceed (i) $500.0 million plus (ii) an amount in excess of $500.0 million, but not exceeding $1,250.0 million (inclusive of amounts incurred pursuant to the foregoing clause (i)), provided that any amount of Permitted PGN Debt incurred in excess of $500.0 million shall automatically result in a dollar-for-dollar reduction (but not to an amount less than zero) of the aggregate amount of Indebtedness permitted to be incurred under Sections 4.06(b)(xx) and (xxi).
“Permitted Refinancing Indebtedness” means any Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries, any Disqualified Stock issued by the Issuer or any of its Restricted Subsidiaries and any preferred stock issued by any Restricted Subsidiary, in each case, in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, exchange, defease or discharge other Indebtedness of the Issuer or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Permitted Refinancing Indebtedness; provided that:
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“Permitted Tax Distributions” means (i) dividends or other distributions to pay any U.S. federal, state, local or non-U.S. income taxes actually payable by the direct or indirect holders of the Issuer’s Capital Stock (or, in the case of any such holder that owns any assets other than the Issuer’s Capital Stock at any applicable time, the U.S. federal, state, local or non-U.S. income taxes that would have been actually payable had such holder owned no other assets) by virtue of the fact that the Issuer is a pass-through entity for U.S. federal, state, local or non-U.S. income tax purposes (as applicable), for any such taxable year (or portion thereof) ending after December 31, 2011 and, to the extent resulting from audit adjustments after the Signing Date, for any such taxable year (or portion thereof) ending prior to December 31, 2011 and (ii) for any taxable year (or portion thereof) for which the Issuer is a member of a group filing a consolidated, group, affiliated, combined or unitary tax return (including any such group or similar group under U.S. federal, state, local or non-U.S. law) with any parent entity, any dividends or other distributions to fund any U.S. federal, state, local or non-U.S. income taxes that are attributable to the income, revenue, receipts or capital of the Issuer and its Subsidiaries for which such parent entity is liable up to an amount not to exceed with respect to such taxes the amount of any such taxes that the Issuer and its Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Issuer and its Subsidiaries had paid tax on a consolidated, combined, group, affiliated or unitary basis on behalf of an affiliated group (or similar group) consisting only of the Issuer and its Subsidiaries.
“Pledged IP” means all Intellectual Property of the Secured Guarantors to the extent included under clauses (a) or (b) in the definition of “Collateral.”
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity, whether or not having separate legal personality.
“Pledged IP” means all Intellectual Property of the Secured Guarantors to the extent included under clauses (a) or (b) in the definition of “Collateral.”
“Principal Holding Company” means, as of any date of determination, each of Arrasas Limited, Prestige Cruises International S. de R. LLtd. and any other direct Subsidiary of the Issuer that at any time holds (including, as a result of a transfer of assets, whether by Investment, disposition, Restricted Payment or otherwise), either directly or indirectly through one or more of its direct or indirect Subsidiaries, any assets material to the business of the Issuer and its Subsidiaries taken as a whole; provided that Norwegian Cruise Co. Inc. (“Cruise Co”) shall not constitute a Principal Holding Company so long as Cruise Co holds no material assets other than the passenger cruise vessel Pride of America, IMO number 9209221, currently registered in the name of Pride of America Ship Holding, LLC under the laws of the United States of America with the official number 1146542.
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“Priority Guaranty Indebtedness” means Indebtedness for borrowed money that is not expressly subordinated in right of payment to the prior payment in full of the Note Obligations (provided that the obligors of such subordinated Indebtedness are the same as the obligors of the Note Obligations) which is incurred or guaranteed by, or otherwise an obligation of, any Principal Holding Company or any Subsidiary of such Person (any such Person (including its Subsidiaries), a “Priority Guarantor”); provided that Priority Guaranty Indebtedness shall not include (i) any financing arrangement (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder) entered into by a Priority Guarantor for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Capital Stock of entities owning or to own Vessels or other related financing arrangements (e.g., for vessel build-outs); (ii) any other Indebtedness for borrowed money of any Priority Guarantor outstanding on the Signing Date and any Permitted Refinancing Indebtedness thereof to the extent permitted pursuant to Section 4.06(b)(vi) (provided that, notwithstanding clause (a) of the definition of “Permitted Refinancing Indebtedness,” the aggregate principal amount or, if applicable, the committed amount of Indebtedness incurred under the ARCA may be increased by up to $375.0 million and, notwithstanding clause (d) of the definition of “Permitted Refinancing Indebtedness,” Norwegian Jewel Limited may guarantee such Permitted Refinancing Indebtedness so long as Norwegian Jewel Limited holds no material assets other than the Norwegian Jewel Vessel (as defined below)); or (iii) Indebtedness incurred by Norwegian Jewel Limited, including liens or guarantees on the passenger cruise vessel Norwegian Jewel, IMO number 9304045, currently registered in the name of Norwegian Jewel Limited under the laws of the Commonwealth of The Bahamas with the official number 8000877 (the “Norwegian Jewel Vessel”), as well as guarantees of such Indebtedness by the direct parent of Norwegian Jewel Limited and liens on the shares of Norwegian Jewel Limited, so long as, for all cases under this clause (iii), Norwegian Jewel Limited holds no material assets other than the Norwegian Jewel Vessel.
“Productive Asset Lease” means any lease or charter of one or more Vessels (other than leases or charters required to be classified and accounted for as finance leases under GAAP).
“QIB” means a “Qualified Institutional Buyer” as defined in Rule 144A.
“Rating Agencies” means any of Moody’s, S&P or Fitch, or any of their respective successors or, if any of the foregoing shall cease to provide a corporate or issuer credit rating (or the equivalent) of the Issuer or a rating of the Notes, as applicable, for reasons outside the control of the Issuer, a nationally recognized statistical rating agency selected by the Issuer to substitute for such Rating Agency.
“Rating Event” means:
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“Ready for Sea Cost” means with respect to a Vessel to be acquired, constructed or leased (pursuant to a Capital Lease Obligation) by the Issuer or any Restricted Subsidiary, the aggregate amount of all expenditures incurred to acquire or construct and bring such Vessel to the condition and location necessary for its intended use, including any and all inspections, appraisals, repairs, modifications, additions, permits and licenses in connection with such acquisition or lease, which would be classified as “property, plant and equipment” in accordance with GAAP and any assets relating to such Vessel.
“Record Date” means, as applicable, the Class A Record Date, the Class B Record Date (as defined in the Class B Notes) or the Backstop Record Date (as defined in the Backstop Notes).
“Redemption Date” means, when used with respect to any Note to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this Indenture, or the date of any redemption as a result of an acceleration or otherwise.
“Redemption Price” means, when used with respect to any Note to be redeemed, the price at which it is to be redeemed pursuant to this Indenture and such Note (which price shall include, with respect to any redemption of (i) the Class A Notes prior to the Class A Par Call Date, (ii) the Class B Notes prior to the Class B Par Call Date or (iii) the Backstop Notes prior to the Backstop Par Call Date, whether by optional redemption, by mandatory redemption or upon an acceleration of the applicable Notes on or after an Event of Default, the Redemption Premium).
“Redemption Premium” means, with respect to any redemption of (i) the Class A Notes prior to the Class A Par Call Date, (ii) the Class B Notes prior to the Class B Par Call Date or (iii) the Backstop Notes prior to the Backstop Par Call Date, whether by optional redemption, by mandatory redemption or upon an acceleration of the applicable Notes on or after an Event of Default, the premium on such Notes equal to the excess of the Redemption Price applicable to such Notes on such Redemption Date calculated in a manner consistent with the calculation set forth in Section 6 of the applicable Notes, over the Redemption Price of such Notes on such Redemption Date if such redemption were at par.
“Regulation S” means Regulation S under the U.S. Securities Act (including any successor regulation thereto), as it may be amended from time to time.
“Related Vessel Property” means, with respect to any Vessel (i) any insurance policies on such Vessel, (ii) any requisition compensation payable in respect of any compulsory acquisition thereof, (iii) any earnings derived from the use or operation thereof and/or any earnings account with respect to such earnings, and (iv) any charters, operating leases, licenses and related agreements entered into in respect of the Vessel and any security or guarantee in respect of the relevant charterer’s or lessee’s obligations under any relevant charter, operating lease, license or related agreement, (v) any cash collateral account established with respect to such Vessel pursuant to the financing arrangements with respect thereto, (vi) any inter-company loan or facility agreements relating to the financing of the acquisition of, and/or the leasing arrangements (pursuant to Capital Lease Obligations) with respect to, such Vessel, (vii) any building or conversion contracts relating to such Vessel and any security or guarantee in respect of the builder’s obligations under such contracts, (viii) any interest rate swap, foreign currency hedge, exchange or similar agreement incurred in connection with the financing of such Vessel and required to be assigned by the lender and (ix) any security interest in, or agreement or assignment relating to, any of the foregoing or any mortgage in respect of such Vessel.
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“Remaining Life” has the meaning assigned to such term in the definition of “Treasury Rate.”
“Replacement Assets” means (1) assets not classified as current assets under GAAP that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.
“Responsible Officer” means any officer within the agency and corporate trust group, division or section of the Trustee (however named, or any successor group of the Trustee) and also means, with respect to any particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject, who, in each case, shall have direct responsibility for the administration of this Indenture.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Subsidiary” means any Subsidiary of the Issuer that is not an Unrestricted Subsidiary.
“Rule 144” means Rule 144 under the U.S. Securities Act (including any successor regulation thereto), as it may be amended from time to time.
“Rule 144A” means Rule 144A under the U.S. Securities Act (including any successor regulation thereto), as it may be amended from time to time.
“S&P” means Standard & Poor’s Ratings Group.
“Secured Guarantor” means collectively (i) Krystalsea Limited, (ii) Great Stirrup Cay Limited, (iii) IPCo Parent, (iv) USBermuda IPCo, (v) UK IPCo, (vi) Oceania Cruises, (vii) Seven Seas and (viii) Prestige Holdings.
“Secured Parties” means, collectively, the Holders, the Trustee, any Paying Agent, any Transfer Agent, the Security Agent and any other holder from time to time of any of the Note Obligations and, in each case, their respective successors and assigns.
“Security Agent” means U.S. Bank Trust Company, National Association acting as collateral agent pursuant to and as defined in the Security Documents or such successor collateral agent or any delegate thereof as may be appointed thereunder.
“Security Documents” means the security agreements, pledge agreements, charge agreements, equitable share mortgage, collateral assignments, Control Agreements, intellectual property security agreements and any other instrument and document executed and delivered pursuant to this Indenture or otherwise or any of the foregoing, as the same may be amended, supplemented or otherwise modified from time to time, creating the security interests in the Collateral as contemplated by this Indenture.
“Significant Subsidiary” means, at the date of determination, any Restricted Subsidiary that together with its Subsidiaries which are Restricted Subsidiaries (i) for the most recent fiscal year, accounted for more than 10% of the consolidated revenues of the Issuer or (ii) as of the end of the most recent fiscal year, was the owner of more than 10% of the consolidated assets of the Issuer; provided that notwithstanding the foregoing, each Secured Guarantor shall be deemed a Significant Subsidiary hereunder.
“Specified Guarantor” means collectively (i) Krystalsea Limited, (ii) Great Stirrup Cay Limited, (iii) IPCo Parent, (iv) USBermuda IPCo and (v) UK IPCo.
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“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Class A Issue Date, the Class B Issue Date or the Backstop Issue Date, as applicable, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subsidiary” means, with respect to any specified Person:
“Supplemental Indenture” means a supplemental indenture to this Indenture in form and substance reasonably satisfactory to the Trustee.
“Tax” or “Taxes” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and additions to tax related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of Tax).
“Total Assets” means the total assets of the Issuer and its Subsidiaries that are Restricted Subsidiaries, as shown on the most recent balance sheet of the Issuer, determined on a consolidated basis in accordance with GAAP, calculated after giving effect to pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Total Tangible Assets” means the Total Assets excluding consolidated intangible assets, calculated after giving effect to pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Trademark” means all trademarks, service marks, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, and designs, and any and all registrations and applications for registration filed in connection therewith, and all renewals thereof, and all rights to recover for all past, present and future infringements thereof and all rights to sue therefor, and all rights corresponding thereto throughout the world, all domain names, whether or not trademarks or service marks, web addresses, web pages, websites and related content, accounts with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs, and registrations thereof, and all goodwill associated or symbolized by the foregoing.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Issuer in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by the Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the applicable Redemption Date to the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the quarterly equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable. If there is no United States Treasury security maturing on the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, but there are two or more United States Treasury securities with a maturity date equally distant from the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, one with a maturity date preceding the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, and one with a maturity date following the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, the Issuer shall select the United States Treasury security with a maturity date preceding the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable. If there are two or more United States Treasury securities maturing on the Class A First Call Date, the Class B First Call Date or the Backstop Par Call Date, as applicable, or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the quarterly yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trigger Period” means the period commencing on the first public announcement by the Issuer of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control; provided, that if the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies, such 60-day period shall be extended until the first to occur of (x) the date that such Rating Agency announces the results of its review and (y) the date that is 180 days after consummation of the Change of Control.
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“Uncommitted Second Lien Indebtedness” means any Indebtedness incurred by the Issuer or any of the Guarantors in an aggregate principal amount not to exceed $500.0 million at any time outstanding, which Indebtedness (x) is secured by Liens on the Collateral on a junior basis to the Liens securing the Note Obligations and subject at all time to a Customary Intercreditor Agreement, (y) is provided or arranged in full by Apollo and (z) shall have a final maturity date that is the later of (i) the five-year anniversary of the issuance thereof and (ii) the six-month anniversary of the Backstop Maturity Date.
“Unearned Customer Deposits” means amounts paid to the Issuer or any of its Subsidiaries representing customer deposits for unsailed bookings (whether paid directly by the customer or by a credit card company).
“Unrestricted Subsidiary” means any Subsidiary of the Issuer that is designated by the Board of Directors of the Issuer as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors of the Issuer but only to the extent that such Subsidiary:
“Unsecured Notes” means the 3.625% senior notes due 2024 issued by the Issuer, the 5.875% senior notes due 2026 issued by the Issuer, the 2028 Notes and the 2029 Notes, each as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the existing holders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount of notes issued thereunder (in each case subject to compliance with Section 4.06) or altering the maturity thereof.
“U.S. dollar” or “$” means the lawful currency of the United States of America.
“U.S. Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
“U.S. Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
“Vessel” means a passenger cruise vessel which is owned by and registered (or to be owned by and registered) in the name of the Issuer or any of its Restricted Subsidiaries or operated or to be operated by
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the Issuer or any of its Restricted Subsidiaries, in each case together with all related spares, equipment and any additions or improvements.
“Vessel Holding Issuer” means a Subsidiary of the Issuer, the assets of which consist solely of one or more Vessels and the corresponding Related Vessel Property and whose activities are limited to the ownership of such Vessels and Related Vessel Property and any other asset reasonably related to or resulting from the acquisition, purchase, charter, leasing, rental, construction, ownership, operation, improvement, expansion and maintenance of such Vessel, the leasing of such Vessels and any activities reasonably incidental to the foregoing.
“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
Term | Section/Exhibit |
|---|---|
4.12(a) | |
4.10(a) | |
2.03 | |
2.06(b)(ii) | |
4.09(c) | |
12.08 | |
“Belize Central Bank Approval” | 11.01(f)(ii) |
3.09(b) | |
4.11(a) | |
4.11(a) | |
4.11(a) | |
8.03 | |
4.06(e) | |
2.12 | |
6.01(a) | |
4.09(c) | |
2.01(c) | |
11.01(f)(i) | |
“Great Stirrup Cay Pledged Equity Central Bank Approval” | 11.01(e)(iv) |
11.01(f)(i) | |
“Great Stirrup Cay Mortgage Central Bank Approval” | 11.01(f)(i) |
11.01(e)(iv) | |
11.01(f)(ii) | |
11.01(f)(ii) | |
4.07(b) |
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Term | Section/Exhibit |
|---|---|
“incur” | 4.06(a) |
“Issuer” | Preamble |
12.14 | |
8.02 | |
3.01(b) | |
“Notes” | Recitals |
4.09(b)(i) | |
3.11(b) | |
3.11(b) | |
2.01(c) | |
2.03 | |
4.06(b) | |
4.08(b) | |
2.03 | |
1.01 | |
“Redemption Amount” | 3.01(b) |
2.03 | |
2.01(b) | |
“Reporting Entity” | 4.19(a) |
12.14 | |
2.01(b) | |
4.08(a)(iv) | |
2.03 | |
“Signing Date” | Preamble |
7.08(b) | |
“Supplemental Security Agents” | 7.08(b) |
4.12(a) | |
3.09 | |
1.03(i) | |
2.03 | |
4.07(a)(ii) | |
“Trustee” | Preamble |
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The Notes shall be fully and unconditionally guaranteed by the Guarantors in accordance with Article Ten. The terms and provisions contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture and the Issuer, the Guarantors, the Trustee and the Security Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes shall be issued only in registered form without coupons and only in minimum denominations of $2,000 in principal amount and any integral multiples of $1,000 in excess thereof.
Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more Global Notes substantially in the form of Exhibit A-1, in the case of the Class A Notes, Exhibit A-2, in the case of the Class B Notes, or Exhibit A-3, in the case of the Backstop Notes, each as attached hereto, with such applicable legends as are provided in Exhibit A-1, Exhibit A-2 or Exhibit A-3, as applicable,
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except as otherwise permitted herein (each, a “Regulation S Global Note” and, collectively, the “Regulation S Global Notes”), which shall be deposited on behalf of the purchasers of the Notes of the applicable series represented thereby with a custodian for DTC, and registered in the name of DTC or its nominee, duly executed by the Issuer and authenticated by the Trustee (or its authenticating agent in accordance with Section 2.02) as hereinafter provided. The aggregate principal amount of the applicable Regulation S Global Note may from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the applicable Regulation S Global Note and recorded in the applicable Security Register, as hereinafter provided.
Members of, or participants and account holders in, DTC (“Participants”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Trustee or any custodian of DTC or under such Global Note, and DTC or its nominees may be treated by the Issuer, a Guarantor, the Trustee and any agent of the Issuer, a Guarantor or the Trustee as the sole owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, a Guarantor, the Trustee or any agent of the Issuer, a Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC, on the one hand, and the Participants, on the other, the operation of customary practices of such persons governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.
Subject to the provisions of Section 2.10(b), the registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action that a Holder is entitled to take under this Indenture or the Notes.
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An authorized member of the Issuer’s Board of Directors or an executive officer of the Issuer shall sign the Notes on behalf of the Issuer by manual, electronic or facsimile signature (including “.pdf” or any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx).
If an authorized member of the Issuer’s Board of Directors or an executive officer whose signature is on a Note no longer holds that office at the time the Trustee (or its authenticating agent) authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid or obligatory for any purpose until an authorized signatory of the Trustee (or its authenticating agent) manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Issuer will issue Notes of the same series in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by any such agent. An authenticating agent has the same rights as any Registrar, co-Registrar, Transfer Agent or Paying Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section 2.02 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
The Issuer shall be responsible for calculating the interest rate for the Class B Notes. Within seven Business Days prior to the issuance of any Class B Note, the Issuer shall notify the Trustee in writing of the interest rate for the Class B Notes and how it is determined. The Trustee may rely conclusively upon the accuracy of such interest rate and calculations without independent verification and without any liability relating thereto.
The Issuer may appoint one or more Transfer Agents, one or more co-Registrars and one or more additional Paying Agents.
The Issuer or any of its Affiliates may act as Transfer Agent, Registrar, co-Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes; provided that neither the Issuer nor any of its Affiliates shall act as Paying Agent for the purposes of Articles Three and Eight and Sections 4.09 and 4.11.
The Issuer hereby appoints (i) U.S. Bank Trust Company, National Association, located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, as Principal Paying Agent (the “Principal Paying Agent”), (ii) U.S. Bank Trust Company, National Association, located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, as
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Registrar and (iii) U.S. Bank Trust Company, National Association, located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, as Transfer Agent. Each hereby accepts such appointments. The Transfer Agent, Principal Paying Agent and Registrar and any authenticating agent are collectively referred to in this Indenture as the “Agents”. The roles, duties and functions of the Agents are of a mechanical nature and each Agent shall only perform those acts and duties as specifically set out in this Indenture and no other acts, covenants, obligations or duties shall be implied or read into this Indenture against any of the Agents. For the avoidance of doubt, a Paying Agent’s obligation to disburse any funds shall be subject to prior receipt by it of those funds to be disbursed.
Subject to any applicable laws and regulations, the Issuer shall cause the Registrar to keep a register (the “Security Register”) for each series of Notes at its corporate trust office in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of ownership, exchange, and transfer of the Notes of the applicable series. Such registration in the Security Register shall be conclusive evidence of the ownership of Notes of the applicable series. Included in the books and records for the Notes of each series shall be notations as to whether such Notes have been paid, exchanged or transferred, canceled, lost, stolen, mutilated or destroyed and whether such Notes have been replaced. In the case of the replacement of any of the Notes, the Registrar shall keep a record of the Note so replaced and the Note issued in replacement thereof. In the case of the cancellation of any of the Notes, the Registrar shall keep a record of the Note so canceled and the date on which such Note was canceled.
The Issuer shall enter into an appropriate agency agreement with any Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of any such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee may appoint a suitably qualified and reputable party to act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.05.
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becoming due until such sum of money shall be paid to such applicable Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act.
The Trustee may, if the Issuer has notified it in writing that the Issuer intends to effect a defeasance or to satisfy and discharge this Indenture in accordance with the provisions of Article Eight, notify the Paying Agent in writing of this fact and require the Paying Agent (until notified by the Trustee to the contrary) to act thereafter as Paying Agent of the Trustee and not the Issuer in relation to any amounts deposited with it in accordance with the provisions of Article Eight.
Upon presentation for exchange or transfer of any Note of any series as permitted by the terms of this Indenture and by any legend appearing on such Note, such Note shall be exchanged or transferred upon the applicable Security Register and one or more new Notes of the same series shall be authenticated and issued in the name of the Holder (in the case of exchanges only) or the transferee, as the case may be. No exchange or transfer of a Note shall be effective under this Indenture unless and until such Note has been registered in the name of such Person in the applicable Security Register.
Furthermore, the exchange or transfer of any Note shall not be effective under this Indenture unless the request for such exchange or transfer is made by the Holder or by a duly authorized attorney-in-fact at the office of the Registrar.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
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All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Neither the Issuer nor the Trustee, Registrar or any Paying Agent shall be required (i) to issue, register the transfer of, or exchange any Note of any series during a period beginning at the opening of 15 days before the day of the delivery of a notice of redemption of Notes of the same series selected for redemption under Section 3.02 and ending at the close of business on the day of such delivery, or (ii) to register the transfer of or exchange any Note of the same series so selected for redemption in whole or in part, except the unredeemed or unpurchased portion of any Note of the same series being redeemed or purchased, as applicable, in part.
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In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may pay such Note instead of issuing a new Note in replacement thereof.
Every replacement Note shall be an additional obligation of the Issuer.
The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Notes.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the Note that has been replaced is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any, payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
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treated as if they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Notes and that the pledgee is not the Issuer or any of its Affiliates.
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Subject to the foregoing provisions of this Section 2.12, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
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The Issuer shall give each notice to the Trustee provided for in this Section 3.02 in writing at least 10 days before the date notice is delivered to the Holders pursuant to Section 3.04 unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officer’s Certificate from the Issuer to the effect that such redemption will comply with the conditions herein. If fewer than all the Notes of such series are to be redeemed, the record date relating to such redemption shall be selected by the Issuer and given to the Trustee, which record date shall be not less than 15 days after the date of notice to the Trustee.
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clearing system or the clearing system prescribes no method of selection, on a pro rata basis, by lot or by such other method as the Trustee deems fair and appropriate; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Note of such series not redeemed to less than $2,000.
The Trustee shall make the selection from the Notes of such series outstanding and not previously called for redemption. The Trustee may select for redemption portions equal to $1,000 in principal amount and any integral multiple thereof; provided that no Notes of $2,000 in principal amount or less may be redeemed in part. Provisions of this Indenture that apply to Notes of any series called for redemption also apply to portions of Notes of such series called for redemption. The Trustee shall notify the Issuer promptly in writing of the Notes or portions of Notes to be called for redemption.
The Trustee shall not be liable for selections made in accordance with the provisions of this Section 3.03 or for selections made by DTC.
Any redemption and notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent.
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At the Issuer’s written request, the Trustee shall give a notice of redemption in the Issuer’s name and at the Issuer’s expense. In such event, the Issuer shall provide the Trustee with the notice and the other information required by this Section 3.04.
For Notes which are represented by global certificates held on behalf of DTC, notices may be given by delivery of the relevant notices to DTC for communication to entitled account holders in substitution for the aforesaid delivery.
Notice of redemption shall be deemed to be given when delivered, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given.
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The Issuer shall not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or Additional Amounts if a payment in respect of the Notes or Note Guarantee of such series were then due and at the time such notice is given, the obligation to pay Additional Amounts must remain in effect. Prior to the publication or, where relevant, delivery of any notice of redemption of the Notes of any series pursuant to the foregoing, the Issuer shall deliver the Trustee an opinion of independent tax counsel of recognized standing qualified under the laws of the relevant Tax Jurisdiction (which counsel shall be reasonably acceptable to the Trustee) to the effect that there has been a Change in Tax Law which would entitle the
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Issuer to redeem the Notes of such series hereunder. In addition, before the Issuer delivers a notice of redemption of the Notes of any series as described above, it shall deliver to the Trustee an Officer’s Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Issuer or the relevant Guarantor taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions as described above, in which event it will be conclusive and binding on all of the Holders.
The foregoing provisions of this Section 3.09 will apply, mutatis mutandis, to any successor of the Issuer (or any Guarantor) with respect to a Change in Tax Law occurring after the time such Person becomes successor to the Issuer (or any Guarantor).
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Upon the occurrence and during the continuance of an Event of Default, the Issuer or the Guarantors shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at a rate that is 2.00% higher than the then applicable interest rate on the Notes and shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, premium (including the Redemption Premium), if any, and Additional Amounts, if any, at the same stepped-up rate to the extent lawful.
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Notwithstanding anything herein to the contrary, (A) no Specified Guarantor shall, and the Issuer shall not permit any Specified Guarantor to, incur or assume any Indebtedness, or Guarantees of Indebtedness, other than (i) the Note Obligations, (ii) any Uncommitted Second Lien Indebtedness, (iii) any Permitted Alternative Debt, in each case of the foregoing clauses (i) through (iii), to the extent such Indebtedness is permitted under this Section 4.06, (iv) Permitted Intercompany Debt and (v) Indebtedness, other than Indebtedness for borrowed money, not exceeding in the aggregate $10.0 million at any time outstanding and (B) no Priority Guarantor shall incur Priority Guaranty Indebtedness other than Permitted PGN Debt.
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(i) in the case of any property or assets that constitute Collateral, Permitted Collateral Liens, which may be secured on a pari passu basis with, or on a junior basis to, the Liens on the Collateral securing the Notes and the Note Guarantees; provided, that Permitted Collateral Liens described in (1) clause (f) of the definition of “Permitted Collateral Liens” and (2) clause (f) of the definition of “Permitted Liens” may be secured on a senior basis to the Liens on the Collateral securing the Notes and the Note Guarantees; and
(ii) in the case of any property or assets that do not constitute Collateral, (A) Permitted Liens and (B) a Lien on such property or assets that is not a Permitted Lien (each Lien under clause (B), a “Triggering Lien”) if, contemporaneously with (or prior to) the incurrence of such Triggering Lien, all Note Obligations are secured on an equal and ratable basis with or on a senior basis to the obligations so secured until such time as such obligations are no longer secured by such Triggering Lien; provided that, if the Indebtedness secured by such Triggering Lien is subordinate or junior in right of payment to the Notes or a Note Guarantee, as the case may be, then such Triggering Lien securing such Indebtedness shall be subordinate or junior in priority to the Lien securing the Note Obligations.
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(all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
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The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
For purposes of determining compliance with this covenant, (1) in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of one or more categories (or subparts thereof) of Permitted Payments or Permitted Investments, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Issuer will be entitled to classify or re-classify such payment (or portion thereof) based on circumstances existing on the date of such reclassification in any manner that complies with this covenant, and such payment (or portion thereof) will be treated as having been made pursuant to the first paragraph of this covenant or such clause or clauses (or subparts thereof) in the definition of Permitted Payments or Permitted Investments and (2) the amount of any return of or on capital from any Investment shall be netted against the amount of such Investment for purposes of determining compliance with this covenant.
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, make any Restricted Payment if the effect of such Restricted Payment is to cause (i) the sale, lease, transfer or other conveyance, directly or indirectly, of any assets or property constituting Collateral by a Secured Guarantor to any Person other than a Secured Guarantor or (ii) any Collateral of any Specified Guarantor to be held by any Subsidiary of the Issuer other than a Specified Guarantor. Notwithstanding the preceding sentence, if no Event of Default exists, a Specified Guarantor shall be permitted to make any Restricted Payment to the Issuer or any of its Restricted Subsidiaries provided such Restricted Payment is limited to, and paid from, such Specified Guarantor’s cash that is in its Collection Accounts or that would have been in its Collection Accounts if such Specified Guarantor had not been permitted to make the applicable Payment (as defined in the applicable IP License) on a net basis pursuant to the applicable IP License (other than Net Proceeds required to be held therein pursuant to this Indenture) and such Restricted Payment (i) is distributed to the Issuer or any of its Restricted Subsidiaries and applied by them for working capital purposes of the Issuer or any of its Restricted Subsidiaries, including debt service and shipbuilding payments, or (ii) is applied by such Specified Guarantor to repay Permitted Intercompany Debt.
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Pending the final application of any Net Proceeds, the Issuer (or the applicable Restricted Subsidiary) may temporarily reduce borrowings under any revolving credit facility, or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales or an Event of Loss (other than Net Proceeds that must be applied as set forth in Section 3.01(b)) that are not applied or invested as provided in Section 4.09(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.09(b)(i) or (v) above shall be deemed to have been applied or invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million (or at an earlier time, at the option of the Issuer), within ten Business Days thereof, the Issuer will make an offer (an “Asset Sale Offer”) to all Holders and may make an offer to all holders of other Indebtedness that is pari passu in right of payment with the Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets or events of loss to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds according to Section 3.11. Notwithstanding anything to the contrary set forth herein, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, (i) sell, lease, transfer or otherwise dispose, directly or indirectly, of any assets or property constituting Collateral to the Issuer or any Subsidiary of the Issuer other than a Secured Guarantor or (ii) permit any Collateral of any Specified Guarantor to be held by any Subsidiary of the Issuer other than a Specified Guarantor. Notwithstanding the preceding sentence, if no Event of Default exists, a Specified Guarantor shall be permitted to dispose of such Specified Guarantor’s cash in its Collection Accounts (other than Net Proceeds required to be held therein pursuant to this Indenture) to the Issuer or any of its Restricted Subsidiaries provided such cash (i) is disposed of to the Issuer or any of its Restricted Subsidiaries and applied by them for working capital purposes of the Issuer or any of its Restricted Subsidiaries, including debt service and shipbuilding payments, or (ii) is applied by such Specified Guarantor to repay Permitted Intercompany Debt.
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In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are
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imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or (v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
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set forth on Schedule II attached hereto within the time periods set forth in Section 11.01(e), Section 11.01(f) and Section 11.01(g) and deliver, and cause each Guarantor to deliver, such other agreements, instruments, certificates and opinions of counsel that may be reasonably requested by the Security Agent in connection therewith and (ii) take all actions necessary to maintain such security interests. For the avoidance of doubt, a Paying Agent shall be held harmless by the Issuer and have no liability with respect to payments or disbursements to be made by such Paying Agent for which payment instructions are not made or that are not otherwise deposited by the respective times set forth in this Indenture.
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provided that (x) the priority of any preferred stock or preference shares in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or ordinary shares, (y) the subordination of (including the application of any standstill period to) loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary and (z) the provisions contained in documentation governing or relating to Indebtedness requiring transactions between or among the Issuer and any Restricted Subsidiary or between or among any Restricted Subsidiaries to be on fair and reasonable terms or on an arm’s-length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
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in each case in a manner that complies in all material respects with the requirements specified in such form provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred.
Notwithstanding the foregoing, (A) neither the Issuer nor another Reporting Entity will be required to furnish any information, certificates or reports that would otherwise be required by Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (B) such reports will not be required to contain financial information required by Rule 3-10 or Rule 3-16 of Regulation S-X, (C) such reports shall be subject to exceptions, exclusions and other differences consistent with the Issuer’s historical practice and shall not be required to present compensation or beneficial ownership information and (D) the Issuer’s determination that it is a “foreign private issuer” (as such term is defined in the U.S. Securities Act or the U.S. Exchange Act) shall be conclusive with respect to the determination of which U.S. Exchange Act form or forms of reports, information and documents are required to be provided pursuant to this covenant, until such time as the Issuer or the Commission determines that the Issuer does not qualify as a “foreign private issuer” (as so defined) for purposes of providing such reports, information and documents.
The financial statements, information and other documents required to be provided as described in this Section 4.19 may be those of (i) the Issuer or (ii) any direct or indirect parent of the Issuer (any such entity, a “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of the Issuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of the Issuer; provided that, if the financial information so furnished relates to such direct or indirect parent of the Issuer, the same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Subsidiaries on a standalone basis, on the other hand.
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Subject to the foregoing, the Security Documents may be amended, extended, renewed, restated or otherwise modified or released to (i) cure any ambiguity, omission, defect or inconsistency therein; (ii) add to the Collateral; or (iii) make any other change thereto that does not adversely affect the holders of the Notes in any material respect; provided, however, that (except where permitted by this Indenture or to effect or facilitate the creation of Permitted Collateral Liens for the benefit of the Security Agent and holders of other Indebtedness incurred in accordance with this Indenture) no Security Document may be amended, extended, renewed, restated or otherwise modified or released, unless contemporaneously with such amendment, extension, renewal, restatement or modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets), the Issuer delivers to the Security Agent and the Trustee, (1) a solvency opinion, in form and substance reasonably satisfactory to the Security Agent and the Trustee, from an accounting, appraisal or investment banking firm of international standing which confirms the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release, (2) a certificate from an Officer of the relevant Person which confirms the solvency of the Person granting such Lien after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets) and (3) an Opinion of Counsel (subject to any qualifications customary for this type of Opinion of Counsel), in form and substance reasonably satisfactory to the Trustee, confirming that, after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets), the Lien or Liens created under the Security Document, so amended, extended, renewed, restated, modified or released and retaken, are valid and perfected Liens not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such amendment, extension, renewal, restatement, modification or release and retake and to which the new Indebtedness secured by the Permitted Collateral Lien is not subject. In the event that the Issuer and its Restricted Subsidiaries comply with the requirements of this Section 4.22, the Trustee and the Security Agent shall (subject to customary protections and indemnifications) consent to such amendments without the need for instructions from the Holders of the Notes.
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Clause (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor or to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
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Notwithstanding anything to the contrary set forth herein, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation) if the effect of such transaction is to cause (i) the sale, lease, transfer or other conveyance of any assets or property constituting Collateral to any Subsidiary of the Issuer other than a Secured Guarantor or (ii) any Collateral of any Specified Guarantor to be held by any Subsidiary of the Issuer other than a Specified Guarantor.
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and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
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Upon any such rescission or waiver in accordance with this Indenture, such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose under this Indenture except as otherwise set forth in such rescission or waiver, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
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All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee, and all rights of action and claims under the Security Documents may be prosecuted or enforced under the Security Documents by the Security Agent (in consultation with the Trustee, where appropriate), without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee or the Security Agent shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee or the Security Agent, their agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered. A delay or omission by the Trustee, the Security Agent or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Each Holder, by accepting a Note, acknowledges that the exercise of remedies by the Security Agent with respect to the Collateral is subject to the terms and conditions of the Security Documents.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
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The limitations in the foregoing provisions of this Section 6.06, however, do not apply to a suit instituted by a Holder for the enforcement of the payment of the principal of, premium, if any, Additional Amounts, if any, or interest, if any, on such Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over another Holder.
Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for the enforcement of payment of principal, premium, if any, Additional Amounts, if any, and interest, if any, on the Notes held by such Xxxxxx, on or after the respective due dates expressed in the Notes shall not be impaired or affected without the consent of such Holder.
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any), Additional Amounts, if any and interest, and interest on any overdue principal (and premium, if any) and Additional Amounts, if any and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the amounts provided for in Section 7.05 and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon the Notes, wherever situated.
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Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
FIRST: to the Trustee, any Agent and the Security Agent for amounts due under Section 7.05;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, premium, if any, interest, if any, and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest, if any, and Additional Amounts, if any, respectively; and
THIRD: to the Issuer, any Guarantor or any other obligors of the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 30 days before such record date, the Issuer shall deliver to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid. This Section 6.10 is subject at all times to the provisions set forth in Section 11.02.
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of judgment made in good faith by a Responsible Officer of the Trustee or the Security Agent unless it is proved that the Trustee or the Security Agent was grossly negligent in ascertaining the pertinent facts; and
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in connection therewith under the circumstances then existing, or the Security Agent is in doubt as to what action it is required to take or not to take hereunder or under the Security Agent, it will be entitled to refrain from taking any action (and will incur no liability for doing so) until directed otherwise in writing by a request signed jointly by the parties hereto entitled to give such direction or by order of a court of competent jurisdiction.
In the event that the Security Agent or Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Security Agent’s or Trustee’s sole discretion may cause the Security Agent or Trustee to be considered an “owner or operator” under any environmental laws or otherwise cause the Security Agent or Trustee to incur, or be exposed to, any environmental liability or any liability under any other federal, state, foreign or local law, the Security Agent and Trustee reserve the right, instead of taking such action, either to resign as Security Agent or Trustee, as the case may be, or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Security Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state, foreign or local law, rule or regulation by reason of the Security Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment and shall be indemnified and held harmless by the Issuers against any such claims, liabilities or actions.
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee (acting in any capacity hereunder) and the Security Agent and each of their officers, directors, employees and agents against any and all loss, liability or expense (including attorneys’ fees and expenses) incurred by either of them without willful misconduct or gross negligence on their part arising out of or in connection with the administration of this trust and the performance of their duties hereunder (including the costs and expenses of enforcing this Indenture and the Security Documents against the Issuer and the Guarantors (including this Section 7.05) and defending themselves against any claim, whether asserted by the Issuer, the Guarantors, any Holder or any other Person, or liability in connection with the execution and performance of any of their powers and duties hereunder). The Trustee and the Security Agent shall notify the Issuer promptly of any claim for which they may seek indemnity. Failure by the Trustee or the Security Agent to so notify the Issuer shall not relieve the Issuer or any Guarantor of its obligations hereunder. The Issuer shall, at the sole discretion of the Trustee or Security Agent, as applicable, defend the claim and the Trustee and the Security Agent may cooperate and may participate at the Issuer’s expense in such defense. Alternatively, the Trustee and the Security Agent may at their option have separate counsel of their own choosing and the Issuer shall pay the properly incurred fees and expenses of such counsel. The Issuer need not pay for any settlement made without its consent, which consent may not be unreasonably withheld. The Issuer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct or gross negligence.
To secure the Issuer’s payment obligations in this Section 7.05, the Trustee and the Security Agent shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, in their
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capacity as Trustee and the Security Agent, except money or property, including any proceeds from the sale of Collateral, held in trust to pay principal of, premium, if any, Additional Amounts, if any, and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of all Notes under this Indenture.
When either the Trustee or the Security Agent incur expenses after the occurrence of a Default specified in Section 6.01(a)(ix) with respect to the Issuer, the Guarantors, or any Restricted Subsidiary, the expenses are intended to constitute expenses of administration under Bankruptcy Law.
The Issuer’s obligations under this Section 7.05 and any claim or Lien arising hereunder shall survive the resignation or removal of any Trustee and the Security Agent, the satisfaction and discharge of the Issuer’s obligations pursuant to Article Eight and any rejection or termination under any Bankruptcy Law, and the termination of this Indenture.
The Trustee and, subject to the appointment and acceptance of a successor Security Agent as provided in this Section and the last paragraph of this Section 7.06, the Security Agent may resign at any time without giving any reason by so notifying the Issuer. The Holders of a majority in outstanding principal amount of the outstanding Notes may remove the Trustee and the Security Agent by so notifying the Trustee, the Security Agent and the Issuer. The Issuer shall remove the Trustee or the Security Agent if:
If the Trustee or the Security Agent resigns or is removed, or if a vacancy exists in the office of Trustee or the Security Agent for any reason, the Issuer shall promptly appoint a successor Trustee or a successor Security Agent, as the case may be. Within one year after the successor Trustee or Security Agent takes office, the Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee or Security Agent to replace the successor Trustee or Security Agent appointed by the Issuer. If the successor Trustee or Security Agent does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.06 within 30 days after the retiring Trustee or Security Agent resigns or is removed, the retiring Trustee or Security Agent, the Issuer or the Holders of a majority in principal amount of the outstanding Notes may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee or Security Agent.
A successor Trustee or Security Agent shall deliver a written acceptance of its appointment to the retiring Trustee or Security Agent, as the case may be, and to the Issuer. Thereupon the resignation or removal of the retiring Trustee or Security Agent shall become effective, and the successor Trustee or Security Agent shall have all the rights, powers and duties of the Trustee or the Security Agent under this Indenture. The successor Trustee or Security Agent shall deliver a notice of its succession to Holders. The retiring Trustee or Security Agent shall, at the expense of the Issuer, promptly transfer all property held by it as Trustee or Security Agent to the successor Trustee or Security Agent; provided that all sums owing to
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the Trustee or Security Agent hereunder have been paid and subject to the Lien provided for in Section 7.05.
If a successor Trustee or Security Agent does not take office within 60 days after the retiring Trustee or Security Agent resigns or is removed, the retiring Trustee or Security Agent, the Issuer or the Holders of at least 30% in outstanding principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or Security Agent at the expense of the Issuer. Without prejudice to the right of the Issuer to appoint a successor Trustee or a successor Security Agent in accordance with the provisions of this Indenture, the retiring Trustee or Security Agent may appoint a successor Trustee or Security Agent at any time prior to the date on which a successor Trustee or Security Agent takes office.
If the Trustee or the Security Agent fails to comply with Section 7.09, any Holder who has been a bona fide Holder of a Note for at least six months may petition any court of competent jurisdiction for the removal of the Trustee or the Security Agent and the appointment of a successor Trustee or Security Agent.
In addition to the foregoing and notwithstanding any provision to the contrary, any resignation, removal or replacement of the Security Agent pursuant to this Section 7.06 shall not be effective until (a) a successor to the Security Agent has agreed to act under the terms of this Indenture and (b) all of the Liens in the Collateral have been transferred to such successor. Upon acceptance of its appointment as Security Agent hereunder by a replacement or successor, such replacement or successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Security Agent hereunder, and the retiring Security Agent shall be discharged from its duties and obligations hereunder.
Notwithstanding the replacement of the Trustee or the Security Agent pursuant to this Section 7.06, the Issuer’s and the Guarantors’ obligations under Section 7.05 shall continue for the benefit of the retiring Trustee or Security Agent.
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protections of the Security Agent, in the event of an inconsistency with the terms of this Indenture, will prevail).
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of the Trustee and the Security Agent shall have a combined capital and surplus of at least $50,000,000, as set forth in its most recent published annual report of condition.
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elect to have either Section 8.02 or Section 8.03 be applied to all outstanding Notes of any series upon compliance with the conditions set forth below in this Article Eight.
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If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium (including the Redemption Premium), if any, and interest on the Notes of such applicable series when due because of any acceleration occurring after an Event of Default, then the Issuer and the Guarantors shall remain liable for such payments.
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in writing the discharge of all of the Issuer’s and Guarantor’s obligations under this Indenture except for those surviving obligations specified in this Article Eight.
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For the avoidance of doubt (and without limiting the generality of any other statements in this Indenture), the provisions of the Trust Indenture Act of 1939, as amended, shall not apply to any amendments to or waivers or consents under this Indenture.
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Alternatively, if the Issuer so determines, the Issuer in exchange for the Note shall issue, and the Trustee shall authenticate, a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment, modification or supplement.
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provided that, in each case, such Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent provided for in this Indenture relating to such
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release have been complied with; provided, further, that, for the avoidance of doubt, no Principal Holding Company shall cease to be a Guarantor except as a result of a release pursuant to clause (a), (d), (e) or (f) of this Section 10.03.
The Trustee shall take all necessary actions at the request of the Issuer to effectuate any release of a Note Guarantee in accordance with these provisions.
Each of the releases set forth above shall be effected by the Trustee without the consent of the Holders and will not require any other action or consent on the part of the Trustee.
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Subject to the provisions of the Security Documents, the Security Agent shall have the power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts of impairment that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Security Agent (after consultation with the Trustee, where appropriate) may deem expedient to preserve or protect its interest and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or the Security Agent). The Security Agent is hereby irrevocably authorized by each Holder of the Notes to effect any release of Liens or Collateral authorized by Section 11.04 hereof or by the terms of the Security Documents.
Each Holder, by accepting a Note, shall be deemed (i) to have irrevocably appointed U.S. Bank Trust Company, National Association as Security Agent, (ii) to have irrevocably authorized the Security Agent and the Trustee to (a) perform the duties and exercise the rights, powers and discretions that are specifically given to each of them under the Security Documents or other documents to which the Security Agent and/or the Trustee is a party, together with any other incidental rights, power and discretions and (b) execute each document expressed to be executed by the Security Agent and/or the Trustee on its behalf.
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Each of the foregoing releases shall be automatic without any further action by the Security Agent and without the consent of the Holders of the Notes or any action on the part of the Trustee.
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if to the Issuer or the Guarantors:
NCL Corporation Ltd.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: General Counsel
if to the Trustee, Principal Paying Agent, Security Agent or Transfer Agent:
U.S. Bank Trust Company, National Association
Global Corporate Trust
West Side Flats
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Norwegian Cruise Lines (“NCL”) Corporate Trust Administrator
The Issuer, the Guarantors or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Notices given by first-class mail shall be deemed given five calendar days after mailing and notices given by publication shall be deemed given on the first date on which publication is made. Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is delivered in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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Any Officer’s Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless the Officer signing such certificate knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which such Officer’s Certificate is based are erroneous. Any Opinion of Counsel may be based and may state that it is so based, insofar as it relates to factual matters, upon certificates of public officials or an Officer’s Certificate stating that the information with respect to such factual matters is in the possession of the Issuer, unless the counsel signing such Opinion of Counsel knows, or in the exercise of reasonable care should know, that the Officer’s Certificate with respect to the matters upon which such Opinion of Counsel is based are erroneous.
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and the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability.
EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
123
liability for any obligations of the Issuer or any Guarantor under this Indenture, the Notes or any Note Guarantee or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. Such waiver and release may not be effective to waive liabilities under the U.S. federal securities laws.
[Remainder of Page Intentionally Left Blank]
124
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
NCL CORPORATION LTD.
as Issuer
By:
Name:
Title:
KRYSTALSEA LIMITED
as Guarantor
By:
Name:
Title:
GREAT STIRRUP CAY LIMITED
as Guarantor
By:
Name:
Title:
NCL US IP CO 1, LLC
as Guarantor
By:
Name:
Title:
NCL UK IP CO LTD
as Guarantor
By:
Name:
Title:
[Signature Page to Indenture]
NCL US IP CO 2, LLC
as Guarantor
By:
Name:
Title:
| |
By: | |
| Name: |
| Title: |
[Signature Page to Indenture]
ARRASAS LIMITED | |
By: | |
| Name: |
| Title: |
NCL (BAHAMAS) LTD. | |
By: | |
| Name: |
| Title: |
[Signature Page to Indenture]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee, Principal Paying Agent, Transfer
Agent, Registrar and Security Agent
By:
Name:
Title:
[Signature Page to Indenture]
FIRSTCARIBBEAN INTERNATIONAL TRUST COMPANY (BAHAMAS) LIMITED, as Supplemental Security Agent for the purposes of Section 7 herein
By:
Name:
Title:
[Signature Page to Indenture]
ATLANTIC BANK LIMITED, as Supplemental Security Agent for the purposes of Section 7 herein
By:
Name:
Title:
[Signature Page to Indenture]
Schedule I
GUARANTORS
Entity | Jurisdiction |
KRYSTALSEA LIMITED | British Virgin Islands |
Great Stirrup Cay Limited | Bahamas |
NCL US IP Co 1, LLC | Delaware |
NCL US IP Co 2, LLC | |
NCL UK IP Co Ltd | England and Wales |
Arrasas Limited | Isle of Man |
NCL (Bahamas) Ltd. | Bermuda |
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| 1. | Collateral Agreement, to be dated as of the Signing Date, by and among the Guarantors party thereto and the Security Agent |
| 2. | Debenture, dated as of the Signing Date, by and between NCL UK IP Co Ltd and the Security Agent |
| 3. | Trademark Security Agreement, to be dated as of the Signing Date, by and between NCL US IP Co 2, LLC and the Security Agent |
| 5. | Share charge over the shares in NCL UK IP Co Ltd, to be dated as of the Signing Date, by and between NCL US IP Co 1, LLC and the Security Agent |
| 7. | Share Charge in Respect of Shares of Great Stirrup Cay Limited, to be executed after the Signing Date, between NCL (Bahamas) Ltd. and the Supplemental Security Agent |
| 8. | Mortgage in respect of Great Stirrup Cay Island owned by Great Stirrup Cay Limited, to be executed after the Signing Date by Great Stirrup Cay Limited and the Supplemental Security Agent |
| 9. | Mortgage in respect of the island owned by Krystalsea Limited, to be executed after the Signing Date by Krystalsea Limited and the Supplemental Security Agent |
| 10. | Intellectual property charge, dated as of December 18, 2023, by and between NCL US IP Co 2, LLC and the Security Agent |
| 11. | LLC Interest Charge in Respect of LLC Interest of NCL US IP Co 2, LLC, dated as of December 18, 2023, between NCL US IP Co 1, LLC and the Security Agent |
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AGREED SECURITY PRINCIPLES
| 1. | Agreed security principles |
The security to be provided under and in connection with this Indenture will be given in accordance with the security principles set out in this Schedule (the Agreed Security Principles).
| 2. | General principles |
| 2.1. | The Agreed Security Principles embody a recognition by all parties that there may be certain legal and practical difficulties in obtaining effective security from the Issuer and its Subsidiaries (collectively, the NCL Group) in certain jurisdictions. In particular: |
| (a) | general statutory limitations, capital maintenance, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules, retention of title claims, regulatory restrictions and similar principles may limit the ability of a member of the NCL Group to provide security or may require that the security be limited by an amount or otherwise; provided that the NCL Group will use commercially reasonable efforts to overcome any such obstacle and assist in demonstrating that adequate corporate benefit accrues to the NCL Group and each relevant Secured Guarantor. If any such limit applies, the security provided will be limited to the maximum amount which the relevant member of the NCL Group may provide having regard to applicable law and determined in consultation with Holders of a majority in aggregate principal amount of the then outstanding Notes; |
| (b) | a factor in determining whether or not security shall be taken is the applicable cost which shall not be disproportionate to the benefit to the Holders of the Notes (or any other beneficiary of the security) of obtaining such security, which determination shall be made in consultation with Holders of a majority in aggregate principal amount of the then outstanding Notes. For these purposes, “cost” includes, but is not limited to, income or corporate tax cost, registration taxes payable on the creation or enforcement or for the continuance of any security, notary costs, stamp duties, out-of-pocket expenses and other fees and expenses directly incurred by the relevant grantor of security or any of its direct or indirect owners, subsidiaries or Affiliates; |
| (c) | except in the case of the Secured Guarantors, unless each consent required by law, statute, the terms of any applicable contract, instrument or constitutional document or otherwise from the minority shareholders in, or any relevant corporate body of, any member of the NCL Group which is not wholly owned (directly or indirectly) by another member of the NCL Group is obtained, such member shall not be required to grant security; provided that the relevant company and the Issuer have used commercially reasonable efforts to obtain such consent, it being acknowledged that commercially reasonable efforts shall not require the payment by the Issuer or the relevant company of any monetary consent or waiver excluding any reasonable legal fees that may be payable; |
| (d) | security shall not be created or perfected to the extent that it would result in the directors or officers of the relevant grantor being in contravention of any statutory duty in such capacity or their fiduciary duties and/or which could reasonably be expected to result in personal, civil or criminal liability on the part of any such director or officer; provided that the relevant member of the NCL Group shall use commercially reasonable efforts to |
III-1
| overcome any such obstacle, it being acknowledged that commercially reasonable efforts shall not require the payment by the Issuer or the relevant company of any monetary consent or waiver; |
| (e) | any assets subject to third party arrangements (including shareholder agreements or joint venture agreements) which are permitted by the terms of the Indenture and which would prevent or prohibit those assets from being subject to legal, valid, binding and enforceable security will be excluded from the security created by any relevant security document; provided that the relevant member of the NCL Group has used commercially reasonable efforts to obtain any necessary consent or waiver if the asset is material, it being acknowledged that commercially reasonable efforts shall not require the payment by the Issuer or the relevant company of any monetary consent or waiver excluding any reasonable legal fees that may be payable; |
| (f) | where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security, security will be granted over the material assets only; |
| (g) | the granting of security or the perfection of the security granted will not be required if: |
| (i) | it has or is reasonably likely to have a material adverse effect on the ability of the relevant member of the NCL Group to conduct its operations and business in the ordinary course as otherwise permitted by the Indenture; or |
| (ii) | it has or is reasonably likely to have a material adverse effect on the tax arrangements of the NCL Group or any member of the NCL Group, provided that, in each case, the relevant member of the NCL Group shall use commercially reasonable efforts to overcome such obstacle. The secured obligations will be limited where necessary to prevent any material additional tax liability of any member of the NCL Group; |
| (h) | in the case of any security granted by any member of the NCL Group, except as set forth in the New York law collateral agreement and the English and Wales law debenture no fixed security will be given over hedging or intellectual property registered and applied for outside of the United States and Canada, which instead in each case shall be subject to floating security to the extent applicable under the laws of the jurisdiction governing the relevant security agreement. Nothing in this paragraph will restrict any provision permitting the crystallization of any floating charge in certain circumstances as set out in the security documents; and |
| (i) | other than in respect of: (i) UCC financing statements and intellectual property security agreements to be filed in the applicable jurisdictions (to the extent described herein) and (ii) any other notifications expressly contemplated in these Agreed Security Principles, no perfection action will be required in jurisdictions in which Secured Guarantors are not located. |
| 3. | Security |
Security will be for all liabilities of the relevant members of the NCL Group (including the Secured Guarantors) under the Notes and the Indenture, in accordance with, and subject to, the requirements of the Agreed Security Principles in each relevant jurisdiction.
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| 4. | Terms of security documents |
| 4.1. | Security will be first ranking, to the extent legally possible (and subject to certain liens mandatorily preferred by applicable laws). |
| 4.2. | Security shall (to the extent legally possible, subject to the general principles above) be created in favor of the Security Agent, the Trustee and the holders of the Notes or the Security Agent on behalf of or as trustee for the Trustee and the holders of the Notes (it being anticipated that the latter option shall be appropriate in most cases), to secure all of the obligations of the party giving the relevant security as well as all liabilities under the Indenture and the Notes (to the extent permitted by local law) and provided that “parallel debt” provisions may be used where necessary. |
| 4.3. | The security documents should only operate to create security rather than to impose new commercial obligations other than to the extent required by local law in order to create, enforce or perfect the security interest expressed to be created thereby, or to deal with requirements directly related thereto. Accordingly, subject to customary representations and undertakings as to Customer Data or intellectual property, representations and undertakings (such as in respect of insurance, maintenance of assets, information or the payment of costs) shall be limited to those necessary for the creation, registration and/or perfection of the security and maintenance of the Collateral, will not unreasonably interfere with the normal running of the business and shall not operate so as to prevent transactions which are otherwise permitted under this Indenture or to require additional consents or authorizations or to impose commercial obligations, in each case other than to the extent required to maintain the Collateral or by local law in order to create, enforce or perfect the security interest expressed to be created thereby, or to deal with requirements directly related thereto. |
| 4.4. | Unless otherwise required under applicable law, if a member of the NCL Group grants security over any asset it shall, subject to the terms of the Indenture and the Notes, be free to deal with that asset in the ordinary course of its business and as permitted by this Indenture until an Event of Default has occurred. |
| 4.5. | The following principles will be reflected in the terms of any security taken as part of this transaction: |
| (a) | security will not be enforceable in respect of the Notes until an Event of Default has occurred and is continuing; |
| (b) | information, such as lists of assets, will be provided if, in the opinion of counsel to the Security Agent or the Trustee, these are required by local law to be provided to perfect or register the security or to ensure the security can be enforced and, unless in the opinion of counsel to the Security Agent or the Trustee required to be provided by local law more frequently, be provided annually or, following an Event of Default which is continuing, on the Security Agent’s or the Trustee’s reasonable request; and |
| (c) | each of the Trustee, the Security Agent and the holders of the Notes should only be able to exercise any power of attorney granted to it under the security documents following an Event of Default. |
| 5. | Bank accounts |
Security will be given over each Collection Account. A Control Agreement shall be required with respect to each Collection Account, to the extent applicable in the relevant jurisdiction.
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| 6. | Real estate |
Subject to Section 11.01(f) of this Indenture, the Issuer will cause (1) a mortgage to be registered in respect of Harvest Caye and (2) a mortgage to be registered in respect of Great Stirrup Cay Island executed and delivered by Krystalsea Limited and Great Stirrup Cay Limited, respectively, as soon as reasonably practicable after the Signing Date.
No security will be given over land, building and improvements or other real estate other than Harvest Caye Island and Great Stirrup Cay Island.
| 7. | Security in respect of Vessels |
No security will be given over any Vessels.
| 8. | [Reserved.] |
| 9. | Intellectual property |
| 9.2. | The security documents for the Pledged IP will not be required to be registered outside of the United States and Canada (other than, with respect to a grant of security under English and Wales Law, registrations with the Companies House required for the validity of the security). Except for any Companies House registration described above, no perfection step, further assurance step, filing, recordation, registration or other formalities will be required in relation to the creation, perfection or priority of any security over intellectual property and in relation to any relevant security document, other than the security documents that are required to be recorded with: |
| (a) | the United States Patent and Trademark Office, the United States Copyright Office or applicable jurisdictions by way of UCC financing statements, as applicable; and |
| (b) | the Canadian Intellectual Property Office.; and |
| 9.3. | Any intellectual property required to be secured in accordance with the Indenture will only be required to be secured under a security document governed by the laws of the United States (or any state or district thereof) or England and Wales irrespective of the jurisdiction of incorporation of the relevant member of the NCL Group which holds the interest in the intellectual property, the location of the intellectual property or otherwise. |
| 10. | Shares and partnership interests |
III-4
Restricted Subsidiary | Name of shareholder/partners | Governing law |
Krystalsea Limited | Belize Investments Limited | British Virgin Islands |
Great Stirrup Cay Limited | NCL (Bahamas) Ltd. | Bahamas |
NCL UK IP Co Ltd | NCL US IP Co 1, LLC | England and Wales |
NCL US IP Co 2, LLC | NCL US IP Co 1, LLC |
| 10.2. | Until an Event of Default has occurred, the securing person will be permitted to retain dividends and other payments to which they may be entitled as shareholders or partners and to exercise voting rights to any shares or partnership interests pledged by it in a manner which does not adversely affect the validity or enforceability of the security or cause an Event of Default to occur and the company whose shares or partnership interests have been pledged will, subject to the terms of the Indenture, be permitted to pay dividends. |
| 10.3. | Unless the restriction is required or advisable by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer or the registration of the transfer of the shares on enforcement of the security granted over them and/or pre-emption rights to the extent these would materially and adversely affect the security interests created under the security documents. |
| 10.4. | Where customary and applicable as a matter of law, at the time of execution of the applicable security document, a copy of the share certificate (or other documents evidencing title to the relevant shares) and a signed but undated copy of the stock/share transfer form will be provided to the Security Agent and where required by law the shareholders’ register will be written up to annotate the existence of the pledge, it being agreed that original share certificate, original undated stock/share transfer form and registered agent certified true copy of the annotated shareholders’ register shall be supplied to the Security Agent as soon as practicable following execution of the applicable security document (having regard to the current logistical difficulties caused by the impact of COVID-19). |
| 11. | English Law Overriding Principle |
Notwithstanding anything to the contrary in the Indenture or these Agreed Security Principles, the parties agree, and the overriding intention is, that no security will be required to be granted by any member of the NCL Group under a security document governed by English law except (i) pursuant to the share charge over the shares in NCL UK IP Co Ltd, by and among NCL US IP Co 1, LLC and the Collateral Agent, (ii) pursuant to a Control Agreement relating to any Collection Account and, (iii) pursuant to a customary debenture granted by NCL UK IP Co Ltd in favor of the Security Agent and (iv) pursuant to the intellectual property charge entered into pursuant to Section 11.01(i)(ii) of this Indenture, granted by NCL US IP Co 2, LLC in favor of the Security Agent.
| 12. | Business Day Overriding Principle |
III-5
With respect to all time periods set forth herein, (x) to the extent any date for a required action falls on a day that is not a business or working day in the relevant jurisdiction, the required date shall instead be the next business or working day in such jurisdiction and (y) if any government office required for any action is closed on one or more days on which it would normally be open, the applicable time periods set forth herein shall not commence until the business or working day following the latest date such government office was closed on a day on which it would normally be open.
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Schedule IV
COLLECTION ACCOUNTS
To be delivered promptly after the Signing Date.
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EXHIBIT A-1
[FORM OF FACE OF CLASS A NOTE]
NCL CORPORATION LTD.
[If Regulation S Global Note – CUSIP Number [●]1 / ISIN [●]2]
[If Restricted Global Note – CUSIP Number [●]3 / ISIN [●]4]
No. [●]
[Include if Global Note — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CLASS A NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC OR A SUCCESSOR DEPOSITARY. THIS CLASS A NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS CLASS A NOTE (OTHER THAN A TRANSFER OF THIS CLASS A NOTE AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
THIS CLASS A NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS CLASS A NOTE FOR THE ACCOUNT OR FOR THE BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS CLASS A NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, AND AGREES THAT
1 | Class A Issue Date Regulation S CUSIP: G6436Q AR7 |
2 | Class A Issue Date Regulation S ISIN: USG6436QAR77 |
3 | Class A Issue Date Rule 144A CUSIP: 62886H BM2 |
4 | Class A Issue Date Rule 144A ISIN: US62886HBM25 |
A-1-1
IT WILL NOT WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS CLASS A NOTE (OR ANY PREDECESSOR OF THIS CLASS A NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE DATE WHEN THE CLASS A NOTES WERE FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S AND THE DATE OF THE COMPLETION OF THE DISTRIBUTION] RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) IN THE UNITED STATES TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (PROVIDED THAT PRIOR TO A TRANSFER PURSUANT TO CLAUSE (D) OR (E), THE TRUSTEE IS FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CLASS A NOTE OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (D) OR (F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CLASS A NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT IT SHALL NOT TRANSFER THE SECURITIES IN AN AMOUNT LESS THAN $2,000.
A-1-2
9.75% SENIOR SECURED NOTES DUE 2028
NCL Corporation Ltd., a Bermuda exempted company, for value received, promises to pay to [CEDE & CO.]5 [●]6 or registered assigns the principal sum of $[●] (as such amount may be increased or decreased as indicated in Schedule A (Schedule of Principal Amount in the Global Note) of this Class A Note) on February 22, 2028.
From February 22, 2023 or from the most recent Interest Payment Date to which interest has been paid or provided for, cash interest on this Class A Note will accrue at 9.75%, payable quarterly on February 15, May 15, August 15 and November 15 of each year, beginning on May 15, 2023, to the Person in whose name this Class A Note (or any predecessor Class A Note) is registered at the close of business on the preceding February 1, May 1, August 1 and November 1, as the case may be. Upon the occurrence and during the continuance of an Event of Default, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and interest, including premium (including the Redemption Premium) and Additional Amounts, if any, will accrue at a rate that is 2.00% higher than the interest rate on the Class A Notes. Any interest paid on this Class A Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Class A Note.
THIS Class A NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Class A Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Class A Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place.
5 | Include if a global note. |
6 | Include if a certificated note. |
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IN WITNESS WHEREOF, NCL Corporation Ltd. has caused this Class A Note to be signed manually or by facsimile by its duly authorized signatory.
Dated: [●], 20[●]
NCL CORPORATION LTD.
By:
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes referred to in the Indenture.
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
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[FORM OF REVERSE SIDE OF CLASS A NOTE]
9.75% Senior Secured Notes due 2028
NCL Corporation Ltd., a Bermuda exempted company (together with its successors and assigns under the Indenture, the “Issuer”), for value received, promises to pay interest on the principal amount of this Class A Note from February 22, 2023 or from the most recent Interest Payment Date to which interest has been paid or provided for at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
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In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Indenture, the Class A Notes, any Note Guarantee thereof or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Class A Notes or any Note Guarantee thereof (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Class A Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the Class A Notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
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The Issuer shall pay interest on this Class A Note (except Defaulted Interest) to the Holder at the close of business on the Class A Record Date for the next Interest Payment Date even if this Class A Note is cancelled after the Class A Record Date and on or before the Interest Payment Date. The Issuer shall pay principal, premium (including the Redemption Premium), if any, and interest (including Defaulted Interest, if any) in U.S. dollars in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of Class A Notes represented by this Class A Note, as established by the Registrar at the close of business on the relevant Class A Record Date. Payments of principal shall be made upon surrender of this Class A Note to the Paying Agent.
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Initially, U.S. Bank Trust Company, National Association or one of its Affiliates will act as Principal Paying Agent and Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Issuer issued this Class A Note under an indenture dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and as Security Agent. The terms of this Class A Note include those stated in the Indenture. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. To the extent any provision of this Class A Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon (including any duration fees as provided below) discounted to the Redemption Date (assuming the Class A Notes matured on the Class A First Call Date) on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Class A Notes to be redeemed,
plus, in either case, accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Redemption Date, subject to the rights of Holders of the Class A Notes on the relevant Class A Record Date to receive interest due on the relevant Interest Payment Date. For all purposes under this Section 6, including the calculation of the Redemption Price, any duration fee payable on any Class A Note shall be deemed to constitute interest thereon.
Date | Percentage |
Class A First Call Date to February 22, 2026 | 104.875% |
February 22, 2026 (the “Class A Par Call Date”) and thereafter | 100.000% |
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Notwithstanding the foregoing, in connection with any tender offer for the Class A Notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Class A Notes validly tender and do not withdraw such Class A Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Class A Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Class A Notes that remain outstanding following such purchase at the Redemption Price plus accrued and unpaid interest and Additional Amounts, if any, thereon, to, but excluding, the date of such redemption.
The Issuer may redeem the Class A Notes, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days’ prior written notice to the Holders of the Class A Notes (which notice shall be irrevocable and given in accordance with the procedures set forth under Section 3.04 of the Indenture), at a Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Issuer for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders on the relevant Class A Record Date to receive interest due on the relevant Interest Payment Date and Additional Amounts (if any) in respect thereof), if on the next date on which any amount would be payable in respect of the Class A Notes or any Note Guarantee thereof, the Issuer or any Guarantor is or would be required to pay Additional Amounts (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), and the Issuer or the relevant Guarantor cannot avoid any such payment obligation by taking reasonable measures available (including, for the avoidance of doubt, appointment of a new Paying Agent but excluding the reincorporation or reorganization of the Issuer or any Guarantor), and the requirement arises as a result of a Change in Tax Law.
The Issuer shall not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or Additional Amounts if a payment in respect of the Class A Notes or any Note Guarantee thereof were then due and at the time such notice is given, the obligation to pay Additional Amounts must remain in effect. Prior to the publication or, where relevant, delivery of any notice of redemption of the Class A Notes pursuant to the foregoing, the Issuer shall deliver the Trustee an opinion of independent tax counsel of recognized standing qualified under the laws of the relevant Tax Jurisdiction (which counsel shall be reasonably acceptable to the Trustee) to the effect that there has been a Change in Tax Law which would entitle the Issuer to redeem the Class A Notes hereunder. In addition, before the Issuer delivers a notice of redemption of the Class A Notes as described above, it shall deliver to the Trustee an Officer’s Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Issuer or the relevant Guarantor taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions as described above, in which event it will be conclusive and binding on all of the Holders.
The foregoing provisions of this paragraph 7 and Section 3.09 of the Indenture will apply, mutatis mutandis, to any successor of the Issuer (or any Guarantor) with respect to a Change in Tax Law occurring after the time such Person becomes successor to the Issuer (or any Guarantor).
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The Class A Notes (including this Class A Note) are in denominations of $2,000 and integral multiples of $1,000 in excess thereof of principal amount at maturity. The transfer of Class A Notes (including this Class A Note) may be registered, and Class A Notes (including this Class A Note) may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium (including the Redemption Premium), if any, or interest on, this Class A Note or any other Class A Note that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors, subject to applicable law, and the Holder of such Class A Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
The Class A Notes shall be subject to defeasance, satisfaction and discharge as provided in Article Eight of the Indenture.
The Class A Notes, any Note Guarantee thereof, the Indenture and the Security Documents may be amended or modified as provided in Article Nine of the Indenture.
This Class A Note and the other Class A Notes have the Events of Default as set forth in Section 6.01 of the Indenture.
This Class A Note and the other Class A Notes will be secured by the Liens on the Collateral, subject to Permitted Collateral Liens, as set forth in Article Eleven of the Indenture.
The Trustee, the Security Agent, any Transfer Agent, any Paying Agent, any Registrar or any other agent of the Issuer or of the Trustee or the Security Agent, in its individual or any other capacity, may become the owner or pledgee of Class A Notes and may otherwise deal with the Issuer with the same rights
A-1-11
it would have if it were not Trustee, Security Agent, Paying Agent, Transfer Agent, Registrar or such other agent, pursuant to Section 7.03 of the Indenture.
A director, officer, employee or incorporator, as such, of the Issuer or the Guarantors, or a member or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer or the Guarantors under this Class A Note, the other Class A Notes, any Note Guarantee thereof or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Class A Note, each Holder shall waive and release all such liability. The waiver and release are part of the consideration for issuance of the Class A Notes.
This Class A Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Class A Note.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer may cause ISIN and/or CUSIP numbers to be printed on the Class A Notes, and if so the Trustee shall use ISIN and/or CUSIP numbers in notices of redemption or exchange or in a Change of Control Offer as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Class A Notes or as contained in any notice of redemption or exchange or in a Change of Control Offer, and reliance may be placed only on the other identification numbers placed on the Class A Notes.
THIS Class A NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
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ASSIGNMENT FORM
To assign and transfer this Class A Note, fill in the form below: |
(I) or (the Issuer) assign and transfer this Class A Note to |
(Insert assignee’s social security or tax I.D. no.) |
(Print or type assignee’s name, address and postal code) |
and irrevocably appoint ____________________ agent to transfer this Class A Note on the books of the Issuer. The agent may substitute another to act for him. |
Your Signature: |
Signature Guarantee: |
Date: |
Certifying Signature |
In connection with any transfer of any Class A Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Class A Notes and the last date, if any, on which the Class A Notes were owned by the Issuer or any of its Affiliates, the undersigned confirms that such Class A Notes are being transferred in accordance with the transfer restrictions set forth in such Class A Notes and:
CHECK ONE BOX BELOW
(1)oto the Issuer or any Subsidiary; or
(2)opursuant to an effective registration statement under the U.S. Securities Act of 1933; or
(3)opursuant to and in compliance with Rule 144A under the U.S. Securities Act of 1933; or
(4)opursuant to and in compliance with Regulation S under the U.S. Securities Act of 1933; or
(5)opursuant to another available exemption from the registration requirements of the U.S. Securities Act of 1933.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Class A Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (3) is checked, by executing this form, the Transferor is deemed to have certified that such Class A Notes are being transferred to a person it reasonably believes is a “qualified institutional buyer” as defined in Rule 144A under the U.S. Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule 144A; if box (4) is checked, by executing this form, the Transferor is deemed to have certified that such transfer is made pursuant to an offer and sale that occurred outside the United States in compliance with Regulation S under the U.S. Securities Act; and if box (5) is checked, the Trustee may require, prior to registering any such transfer of the Class A Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933.
Signature: | ||
Signature Guarantee: | | |
Certifying Signature: | | Date: |
Signature Guarantee: | | |
| ||
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Class A Note or a portion thereof repurchased pursuant to Section 4.09 or 4.11 of the Indenture, check the box: o
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral multiple of $1,000 in excess thereof) to be purchased:
Your Signature: |
Date: |
Certifying Signature: |
A-1-15
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Registered Note, or exchanges of a part of another Global Note or Definitive Registered Note for an interest in this Global Note, have been made:
Date of Decrease/Increase | Amount of Decrease in Principal Amount | Amount of Increase in Principal Amount | Principal Amount Following such Decrease/Increase | Signature of Authorized Officer of Registrar |
| | | | |
| | | | |
| | | | |
| | | | |
A-1-16
EXHIBIT A-2
[FORM OF FACE OF CLASS B NOTE]
NCL CORPORATION LTD.
[If Regulation S Global Note – CUSIP Number [●]7 / ISIN [●]8]
[If Restricted Global Note – CUSIP Number [●]9 / ISIN [●]10]
No. [●]
[Include if Global Note — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CLASS B NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC OR A SUCCESSOR DEPOSITARY. THIS CLASS B NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS CLASS B NOTE (OTHER THAN A TRANSFER OF THIS CLASS B NOTE AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
THIS CLASS B NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS CLASS B NOTE FOR THE ACCOUNT OR FOR THE BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS CLASS B NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, AND AGREES THAT
7 | Class B Issue Date Regulation S CUSIP: [●] |
8 | Class B Issue Date Regulation S ISIN: [●] |
9 | Class B Issue Date Rule 144A CUSIP: [●] |
10 | Class B Issue Date Rule 144A ISIN: [●] |
A-2-1
IT WILL NOT WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS CLASS B NOTE (OR ANY PREDECESSOR OF THIS CLASS B NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE DATE WHEN THE CLASS B NOTES WERE FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S AND THE DATE OF THE COMPLETION OF THE DISTRIBUTION] RESELL OR OTHERWISE TRANSFER THIS CLASS B NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) IN THE UNITED STATES TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (PROVIDED THAT PRIOR TO A TRANSFER PURSUANT TO CLAUSE (D) OR (E), THE TRUSTEE IS FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CLASS B NOTE OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (D) OR (F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CLASS B NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT IT SHALL NOT TRANSFER THE SECURITIES IN AN AMOUNT LESS THAN $2,000.
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[●]%11 SENIOR SECURED NOTES DUE 2028
NCL Corporation Ltd., a Bermuda exempted company, for value received, promises to pay to [CEDE & CO.]12 [●]13 or registered assigns the principal sum of $[●] (as such amount may be increased or decreased as indicated in Schedule A (Schedule of Principal Amount in the Global Note) of this Class B Note) on February [●], 2028.
From [●], 202[●] or from the most recent Interest Payment Date to which interest has been paid or provided for, cash interest on this Class B Note will accrue at [●]%, payable quarterly on [●], [●], [●] and [●] of each year, beginning on [●], 202[●], to the Person in whose name this Class B Note (or any predecessor Class B Note) is registered at the close of business on the preceding [●], [●], [●] or [●], as the case may be. Upon the occurrence and during the continuance of an Event of Default, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and interest, including premium (including the Redemption Premium) and Additional Amounts, if any, will accrue at a rate that is 2.00% higher than the interest rate on the Class A Notes. Any interest paid on this Class A Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Class A Note.
THIS Class B NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Class B Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Class B Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place.
11 | The interest rate shall be, (i) if the Class B Issue Date occurs on or prior to February [●], 2024, a fixed rate equal to 11.00% per annum (provided that such interest rate shall be reduced to 10.00% per annum solely if the average effective yield of the 2028 Notes and the 2029 Notes is less than 12.00% based on the average trading price of the 2028 Notes and 2029 Notes during the five (5) trading day period ending on or before the Business Day prior to the Class B Issue Date, such trading price to be determined based on the mid-price quotes of two broker-dealers active in the trading of such securities and approved in writing by Xxxxxx (such approval not to be unreasonably withheld or delayed)) or (ii), if the Class B Issue Date occurs after February [●], 2024, a fixed rate per annum that is 1.00% higher than the rate calculated pursuant to clause (i). |
12 | Include if a global note. |
13 | Include if a certificated note. |
A-2-3
IN WITNESS WHEREOF, NCL Corporation Ltd. has caused this Class B Note to be signed manually or by facsimile by its duly authorized signatory.
Dated: [●], 20[●]
NCL CORPORATION LTD.
By:
Name:
Title:
A-2-4
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes referred to in the Indenture.
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
A-2-5
[FORM OF REVERSE SIDE OF CLASS B NOTE]
[●]% Senior Secured Notes due 2028
NCL Corporation Ltd., a Bermuda exempted company (together with its successors and assigns under the Indenture, the “Issuer”), for value received, promises to pay interest on the principal amount of this Class B Note from [●], 202[●] or from the most recent Interest Payment Date to which interest has been paid or provided for at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
A-2-6
In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Indenture, the Class B Notes, any Note Guarantee thereof or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Class B Notes or any Note Guarantee thereof (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Class B Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the Class B Notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
A-2-7
The Issuer shall pay interest on this Class B Note (except Defaulted Interest) to the Holder at the close of business on the [●], [●], [●] and [●] (in each case, whether or not a Business Day) preceding such Interest Payment Date (the “Class B Record Date”) even if this Class B Note is cancelled after the Class B Record Date and on or before the Interest Payment Date. The Issuer shall pay principal, premium (including the Redemption Premium), if any, and interest (including Defaulted Interest, if any) in U.S. dollars in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of Class B Notes represented by this Class B Note, as established by the Registrar at the close of business on the relevant Class B Record Date. Payments of principal shall be made upon surrender of this Class B Note to the Paying Agent.
A-2-8
Initially, U.S. Bank Trust Company, National Association or one of its Affiliates will act as Principal Paying Agent and Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Issuer issued this Class B Note under an indenture dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and as Security Agent. The terms of this Class B Note include those stated in the Indenture. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. To the extent any provision of this Class B Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon (including any duration fees as provided below) discounted to the Redemption Date (assuming the Class B Notes matured on the Class B First Call Date) on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Class B Notes to be redeemed,
plus, in either case, accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Redemption Date, subject to the rights of Holders of the Class B Notes on the relevant Class B Record Date to receive interest due on the relevant Interest Payment Date. For all purposes under this Section 6, including the calculation of the Redemption Price, any duration fee payable on any Class B Note shall be deemed to constitute interest thereon.
Date | Percentage | |
14 | To be the two-year anniversary of the Class B Issue Date. |
A-2-9
Class A First Call Date to [●], 202[●]15 | [●]16 | |
[●], 202[●] (the “Class B Par Call Date”) and thereafter | 100.000% | |
Notwithstanding the foregoing, in connection with any tender offer for the Class B Notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Class B Notes validly tender and do not withdraw such Class B Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Class B Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Class B Notes that remain outstanding following such purchase at the Redemption Price plus accrued and unpaid interest and Additional Amounts, if any, thereon, to, but excluding, the date of such redemption.
The Issuer may redeem the Class B Notes, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days’ prior written notice to the Holders of the Class B Notes (which notice shall be irrevocable and given in accordance with the procedures set forth under Section 3.04 of the Indenture), at a Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Issuer for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders on the relevant Class B Record Date to receive interest due on the relevant Interest Payment Date and Additional Amounts (if any) in respect thereof), if on the next date on which any amount would be payable in respect of the Class B Notes or any Note Guarantee thereof, the Issuer or any Guarantor is or would be required to pay Additional Amounts (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), and the Issuer or the relevant Guarantor cannot avoid any such payment obligation by taking reasonable measures available (including, for the avoidance of doubt, appointment of a new Paying Agent but excluding the reincorporation or reorganization of the Issuer or any Guarantor), and the requirement arises as a result of a Change in Tax Law.
The Issuer shall not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or Additional Amounts if a payment in respect of the Class B Notes or any Note Guarantee thereof were then due and at the time such notice is given, the obligation to pay Additional Amounts must remain in effect. Prior to the publication or, where relevant, delivery of any notice of redemption of the Class B Notes pursuant to the foregoing, the Issuer shall deliver the Trustee an opinion of independent tax counsel of recognized standing qualified under the laws of the relevant Tax Jurisdiction (which counsel shall be reasonably acceptable to the Trustee) to the effect that there has been a Change in Tax Law which would entitle the Issuer to redeem the Class B Notes hereunder. In addition, before the Issuer delivers a notice of redemption of the Class B Notes as described above, it shall deliver to the Trustee an Officer’s Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Issuer or the relevant Guarantor taking reasonable measures available to it.
15 | To be the three-year anniversary of the Class B Issue Date. |
16 | To be 100.000% plus half of the interest rate applicable to Class B Notes. |
A-2-10
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions as described above, in which event it will be conclusive and binding on all of the Holders.
The foregoing provisions of this paragraph 7 and Section 3.09 of the Indenture will apply, mutatis mutandis, to any successor of the Issuer (or any Guarantor) with respect to a Change in Tax Law occurring after the time such Person becomes successor to the Issuer (or any Guarantor).
The Class B Notes (including this Class B Note) are in denominations of $2,000 and integral multiples of $1,000 in excess thereof of principal amount at maturity. The transfer of Class B Notes (including this Class B Note) may be registered, and Class B Notes (including this Class B Note) may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium (including the Redemption Premium), if any, or interest on, this Class B Note or any other Class B Note that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors, subject to applicable law, and the Holder of such Class B Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
The Class B Notes shall be subject to defeasance, satisfaction and discharge as provided in Article Eight of the Indenture.
The Class B Notes, any Note Guarantee thereof, the Indenture and the Security Documents may be amended or modified as provided in Article Nine of the Indenture.
This Class B Note and the other Class B Notes have the Events of Default as set forth in Section 6.01 of the Indenture.
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This Class B Note and the other Class B Notes will be secured by the Liens on the Collateral, subject to Permitted Collateral Liens, as set forth in Article Eleven of the Indenture.
A director, officer, employee or incorporator, as such, of the Issuer or the Guarantors, or a member or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer or the Guarantors under this Class B Note, the other Class B Notes, any Note Guarantee thereof or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Class B Note, each Holder shall waive and release all such liability. The waiver and release are part of the consideration for issuance of the Class B Notes.
This Class B Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Class B Note.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer may cause ISIN and/or CUSIP numbers to be printed on the Class B Notes, and if so the Trustee shall use ISIN and/or CUSIP numbers in notices of redemption or exchange or in a Change of Control Offer as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Class B Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed on the Class B Notes.
THIS Class B NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
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ASSIGNMENT FORM
To assign and transfer this Class B Note, fill in the form below: |
(I) or (the Issuer) assign and transfer this Class B Note to |
(Insert assignee’s social security or tax I.D. no.) |
(Print or type assignee’s name, address and postal code) |
and irrevocably appoint ____________________ agent to transfer this Class B Note on the books of the Issuer. The agent may substitute another to act for him. |
Your Signature: |
Signature Guarantee: |
Date: |
Certifying Signature |
In connection with any transfer of any Class B Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Class B Notes and the last date, if any, on which the Class B Notes were owned by the Issuer or any of its Affiliates, the undersigned confirms that such Class B Notes are being transferred in accordance with the transfer restrictions set forth in such Class B Notes and:
CHECK ONE BOX BELOW
(1)oto the Issuer or any Subsidiary; or
(2)opursuant to an effective registration statement under the U.S. Securities Act of 1933; or
(3)opursuant to and in compliance with Rule 144A under the U.S. Securities Act of 1933; or
(4)opursuant to and in compliance with Regulation S under the U.S. Securities Act of 1933; or
(5)opursuant to another available exemption from the registration requirements of the U.S. Securities Act of 1933.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Class B Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (3) is checked, by executing this form, the Transferor is deemed to have certified that such Class B Notes are being transferred to a person it reasonably believes is a “qualified institutional buyer” as defined in Rule 144A under the U.S. Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule 144A; if box (4) is checked, by executing this form, the Transferor is deemed to have certified that such transfer is made pursuant to an offer and sale that occurred outside the United States in compliance with Regulation S under the U.S. Securities Act; and if box (5) is checked, the Trustee may require, prior to registering any such transfer of the Class B Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933.
Signature: | ||
Signature Guarantee: | | |
Certifying Signature: | | Date: |
Signature Guarantee: | | |
| ||
A-2-14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Class B Note or a portion thereof repurchased pursuant to Section 4.09 or 4.11 of the Indenture, check the box: o
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral multiple of $1,000 in excess thereof) to be purchased:
Your Signature: |
Date: |
Certifying Signature: |
A-2-15
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Registered Note, or exchanges of a part of another Global Note or Definitive Registered Note for an interest in this Global Note, have been made:
Date of Decrease/Increase | Amount of Decrease in Principal Amount | Amount of Increase in Principal Amount | Principal Amount Following such Decrease/Increase | Signature of Authorized Officer of Registrar |
| | | | |
| | | | |
A-2-16
EXHIBIT A-3
[FORM OF FACE OF Backstop NOTE]
NCL CORPORATION LTD.
[If Regulation S Global Note – CUSIP Number [●]17 / ISIN [●]18]
[If Restricted Global Note – CUSIP Number [●]19 / ISIN [●]20]
No. [●]
[Include if Global Note — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS Backstop NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC OR A SUCCESSOR DEPOSITARY. THIS Backstop NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS Backstop NOTE (OTHER THAN A TRANSFER OF THIS Backstop NOTE AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
THIS Backstop NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS Backstop NOTE FOR THE ACCOUNT OR FOR THE BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS Backstop NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, AND
17 | Backstop Issue Date Regulation S CUSIP: [●] |
18 | Backstop Issue Date Regulation S ISIN: [●] |
19 | Backstop Issue Date Rule 144A CUSIP: [●] |
20 | Backstop Issue Date Rule 144A ISIN: [●] |
A-3-1
AGREES THAT IT WILL NOT WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS Backstop NOTE (OR ANY PREDECESSOR OF THIS Backstop NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE DATE WHEN THE Backstop NOTES WERE FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S AND THE DATE OF THE COMPLETION OF THE DISTRIBUTION] RESELL OR OTHERWISE TRANSFER THIS Backstop NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) IN THE UNITED STATES TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (PROVIDED THAT PRIOR TO A TRANSFER PURSUANT TO CLAUSE (D) OR (E), THE TRUSTEE IS FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS Backstop NOTE OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (D) OR (F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS Backstop NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT IT SHALL NOT TRANSFER THE SECURITIES IN AN AMOUNT LESS THAN $2,000.
A-3-2
8.00% SENIOR SECURED NOTES DUE 20[●]
NCL Corporation Ltd., a Bermuda exempted company, for value received, promises to pay to [CEDE & CO.]21 [●]22 or registered assigns the principal sum of $[●] (as such amount may be increased or decreased as indicated in Schedule A (Schedule of Principal Amount in the Global Note) of this Backstop Note) on [●], 20[●]23 (the “Backstop Maturity Date”).
From [●], 20[●] or from the most recent Interest Payment Date to which interest has been paid or provided for, cash interest on this Backstop Note will accrue at 8.00%, payable quarterly on [●], [●], [●] and [●] of each year, beginning on [●], 20[●], to the Person in whose name this Backstop Note (or any predecessor Backstop Note) is registered at the close of business on the preceding [●], [●], [●] or [●], as the case may be. Upon the occurrence and during the continuance of an Event of Default, interest on overdue principal and interest, including premium (including the Redemption Premium) and Additional Amounts, if any, will accrue at a rate that is 2.00% higher than the interest rate on the Backstop Notes.
THIS Backstop NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Backstop Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Backstop Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place.
21 | Include if a global note. |
22 | Include if a certificated note. |
23 | To be the five-year anniversary of the Backstop Issue Date. |
A-3-3
IN WITNESS WHEREOF, NCL Corporation Ltd. has caused this Backstop Note to be signed manually or by facsimile by its duly authorized signatory.
Dated: [●], 20[●]
NCL CORPORATION LTD.
By:
Name:
Title:
A-3-4
CERTIFICATE OF AUTHENTICATION
This is one of the Backstop Notes referred to in the Indenture.
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
A-3-5
[FORM OF REVERSE SIDE OF Backstop NOTE]
8.00% Senior Secured Notes due 20[●]
NCL Corporation Ltd., a Bermuda exempted company (together with its successors and assigns under the Indenture, the “Issuer”), for value received, promises to pay interest on the principal amount of this Backstop Note from [●], 20[●] or from the most recent Interest Payment Date to which interest has been paid or provided for at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuer shall pay interest on overdue principal at the interest rate borne by the Backstop Notes compounded quarterly, and it shall pay interest on other overdue amounts at the same rate to the extent lawful. Any interest paid on this Backstop Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Backstop Note.
A-3-6
In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Indenture, the Backstop Notes, any Note Guarantee thereof or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Backstop Notes or any Note Guarantee thereof (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Backstop Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document
A-3-7
effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
The Issuer shall pay interest on this Backstop Note (except Defaulted Interest) to the Holder at the close of business on the [●], [●], [●] and [●] (in each case, whether or not a Business Day) preceding such Interest Payment Date (the “Backstop Record Date”) even if this Backstop Note is cancelled after the Backstop Record Date and on or before the Interest Payment Date. The Issuer shall pay principal, premium (including the Redemption Premium), if any, and interest (including Defaulted Interest, if any) in U.S. dollars in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
A-3-8
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of Backstop Notes represented by this Backstop Note, as established by the Registrar at the close of business on the relevant Backstop Record Date. Payments of principal shall be made upon surrender of this Backstop Note to the Paying Agent.
Initially, U.S. Bank Trust Company, National Association or one of its Affiliates will act as Principal Paying Agent and Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Issuer issued this Backstop Note under an indenture dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and as Security Agent. The terms of this Backstop Note include those stated in the Indenture. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. To the extent any provision of this Backstop Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon (including any duration fees as provided below) discounted to the Redemption Date (assuming the Backstop Notes matured on the Backstop Par Call Date) on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Backstop Notes to be redeemed,
plus, in either case, accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Redemption Date, subject to the rights of Holders of the Backstop Notes on the relevant Backstop Record Date to receive interest due on the relevant Interest Payment Date. For all purposes under this Section 6, including the calculation of the Redemption Price, any duration fee payable on any Backstop Note shall be deemed to constitute interest thereon.
24 | To be the date that is 30 days prior to the five-year anniversary of the Backstop Issue Date. |
A-3-9
Notwithstanding the foregoing, in connection with any tender offer for the Backstop Notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Backstop Notes validly tender and do not withdraw such Backstop Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Backstop Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Backstop Notes that remain outstanding following such purchase at the Redemption Price plus accrued and unpaid interest and Additional Amounts, if any, thereon, to, but excluding, the date of such redemption.
The Issuer may redeem the Backstop Notes, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days’ prior written notice to the Holders of the Backstop Notes (which notice shall be irrevocable and given in accordance with the procedures set forth under Section 3.04 of the Indenture), at a Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Issuer for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders on the relevant Backstop Record Date to receive interest due on the relevant Interest Payment Date and Additional Amounts (if any) in respect thereof), if on the next date on which any amount would be payable in respect of the Backstop Notes or any Note Guarantee thereof, the Issuer or any Guarantor is or would be required to pay Additional Amounts (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), and the Issuer or the relevant Guarantor cannot avoid any such payment obligation by taking reasonable measures available (including, for the avoidance of doubt, appointment of a new Paying Agent but excluding the reincorporation or reorganization of the Issuer or any Guarantor), and the requirement arises as a result of a Change in Tax Law.
The Issuer shall not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or Additional Amounts if a payment in respect of the Backstop Notes or any Note Guarantee thereof were then due and at the time such notice is given, the obligation to pay Additional Amounts must remain in effect. Prior to the publication or, where relevant, delivery of any notice of redemption of the Backstop Notes pursuant to the foregoing, the Issuer shall deliver the Trustee an opinion of independent tax counsel of recognized standing qualified under the laws of the relevant Tax Jurisdiction (which counsel shall be reasonably acceptable to the Trustee) to the effect that there has been a Change in Tax Law which would entitle the Issuer to redeem the Backstop Notes hereunder. In addition, before the Issuer delivers a notice of redemption of the Backstop Notes as described above, it shall deliver to the Trustee an Officer’s Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Issuer or the relevant Guarantor taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions as described above, in which event it will be conclusive and binding on all of the Holders.
A-3-10
The foregoing provisions of this paragraph 7 and Section 3.09 of the Indenture will apply, mutatis mutandis, to any successor of the Issuer (or any Guarantor) with respect to a Change in Tax Law occurring after the time such Person becomes successor to the Issuer (or any Guarantor).
The Backstop Notes (including this Backstop Note) are in denominations of $2,000 and integral multiples of $1,000 in excess thereof of principal amount at maturity. The transfer of Backstop Notes (including this Backstop Note) may be registered, and Backstop Notes (including this Backstop Note) may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium (including the Redemption Premium), if any, or interest on, this Backstop Note or any other Backstop Note that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors, subject to applicable law, and the Holder of such Backstop Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
The Backstop Notes shall be subject to defeasance, satisfaction and discharge as provided in Article Eight of the Indenture.
The Backstop Notes, any Note Guarantee thereof, the Indenture and the Security Documents may be amended or modified as provided in Article Nine of the Indenture.
This Backstop Note and the other Backstop Notes have the Events of Default as set forth in Section 6.01 of the Indenture.
A-3-11
This Backstop Note and the other Backstop Notes will be secured by the Liens on the Collateral, subject to Permitted Collateral Liens, as set forth in Article Eleven of the Indenture.
The Trustee, the Security Agent, any Transfer Agent, any Paying Agent, any Registrar or any other agent of the Issuer or of the Trustee or the Security Agent, in its individual or any other capacity, may become the owner or pledgee of Class A Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Security Agent, Paying Agent, Transfer Agent, Registrar or such other agent, pursuant to Section 7.03 of the Indenture.
A director, officer, employee or incorporator, as such, of the Issuer or the Guarantors, or a member or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer or the Guarantors under this Backstop Note, the other Backstop Notes, any Note Guarantee thereof or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Backstop Note, each Holder shall waive and release all such liability. The waiver and release are part of the consideration for issuance of the Backstop Notes.
This Backstop Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Backstop Note.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer may cause ISIN and/or CUSIP numbers to be printed on the Backstop Notes, and if so the Trustee shall use ISIN and/or CUSIP numbers in notices of redemption or exchange or in a Change of Control Offer as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Backstop Notes or as contained in any notice of redemption or exchange or in a Change of Control Offer, and reliance may be placed only on the other identification numbers placed on the Backstop Notes.
THIS Backstop NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
A-3-12
ASSIGNMENT FORM
To assign and transfer this Backstop Note, fill in the form below: |
(I) or (the Issuer) assign and transfer this Backstop Note to |
(Insert assignee’s social security or tax I.D. no.) |
(Print or type assignee’s name, address and postal code) |
and irrevocably appoint ____________________ agent to transfer this Backstop Note on the books of the Issuer. The agent may substitute another to act for him. |
Your Signature: |
Signature Guarantee: |
Date: |
Certifying Signature |
In connection with any transfer of any Backstop Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Backstop Notes and the last date, if any, on which the Backstop Notes were owned by the Issuer or any of its Affiliates, the undersigned confirms that such Backstop Notes are being transferred in accordance with the transfer restrictions set forth in such Backstop Notes and:
CHECK ONE BOX BELOW
(1)oto the Issuer or any Subsidiary; or
(2)opursuant to an effective registration statement under the U.S. Securities Act of 1933; or
(3)opursuant to and in compliance with Rule 144A under the U.S. Securities Act of 1933; or
(4)opursuant to and in compliance with Regulation S under the U.S. Securities Act of 1933; or
(5)opursuant to another available exemption from the registration requirements of the U.S. Securities Act of 1933.
A-3-13
Unless one of the boxes is checked, the Trustee will refuse to register any of the Backstop Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (3) is checked, by executing this form, the Transferor is deemed to have certified that such Backstop Notes are being transferred to a person it reasonably believes is a “qualified institutional buyer” as defined in Rule 144A under the U.S. Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule 144A; if box (4) is checked, by executing this form, the Transferor is deemed to have certified that such transfer is made pursuant to an offer and sale that occurred outside the United States in compliance with Regulation S under the U.S. Securities Act; and if box (5) is checked, the Trustee may require, prior to registering any such transfer of the Backstop Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933.
Signature: | ||
Signature Guarantee: | | |
Certifying Signature: | | Date: |
Signature Guarantee: | | |
| ||
A-3-14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Backstop Note or a portion thereof repurchased pursuant to Section 4.09 or 4.11 of the Indenture, check the box: o
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral multiple of $1,000 in excess thereof) to be purchased:
Your Signature: |
Date: |
Certifying Signature: |
A-3-15
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Registered Note, or exchanges of a part of another Global Note or Definitive Registered Note for an interest in this Global Note, have been made:
Date of Decrease/Increase | Amount of Decrease in Principal Amount | Amount of Increase in Principal Amount | Principal Amount Following such Decrease/Increase | Signature of Authorized Officer of Registrar |
| | | | |
A-3-16
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE TO REGULATION S GLOBAL NOTE25
(Transfers pursuant to § 2.06(b)(ii) of the Indenture)
U.S. Bank Trust Company, National Association
U.S. Bank Global Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
St. Xxxx, Minnesota 55017
EP-MN-WS3C
Attention: Transfer Agent
Re: [Class A Notes] [Class B Notes] [Backstop Notes]
Reference is hereby made to the Indenture dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”) among NCL Corporation Ltd., a Bermuda exempted company, as Issuer, the guarantors party thereto, as Guarantors, and U.S. Bank Trust Company, National Association, as Trustee and as Security Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to $____________ aggregate principal amount of [Class A Notes] [Class B Notes] [Backstop Notes] that are held as a beneficial interest in the form of a Restricted Global Note (CUSIP No.: [●]26; ISIN No: [●]27) with DTC in the name of [name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for an equivalent beneficial interest in a Regulation S Global Note (CUSIP No.: [●]28; ISIN No: [●]29).
In connection with such request, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the [Class A Notes] [Class B Notes] [Backstop Notes] and:
(a)with respect to transfers made in reliance on Regulation S (“Regulation S”) under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), does certify that:
25 | If the Note is a Definitive Registered Note, appropriate changes need to be made to the form of this transfer certificate. |
26 | [Class A Issue Date Rule 144A CUSIP: 62886H BM2] [Class B Issue Date Rule 144A CUSIP: [●]] [Backstop Issue Date Rule 144A CUSIP: [●]] |
27 | [Class A Issue Date Rule 144A ISIN: US62886HBM25] [Class B Issue Date Rule 144A ISIN: [●]] [Backstop Issue Date Rule 144A ISIN: [●]] |
28 | [Class A Issue Date Regulation S CUSIP: G6436Q AR7] [Class B Issue Date Regulation S CUSIP: [●]] [Backstop Issue Date Regulation S CUSIP: [●]] |
29 | [Class A Issue Date Regulation S ISIN: USG6436QAR77] [Class B Issue Date Regulation S ISIN: [●]] [Backstop Issue Date Regulation S ISIN: [●]] |
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(i)the offer of the [Class A Notes] [Class B Notes] [Backstop Notes] was not made to a person in the United States;
(ii)either (i) at the time the buy order is originated the transferee is outside the United States or the Transferor and any person acting on its behalf reasonably believe that the transferee is outside the United States; or (ii) the transaction was executed in, on or through the facilities of a designated offshore securities market described in paragraph (b) of Rule 902 of Regulation S and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;
(iii)no directed selling efforts have been made in the United States by the Transferor, an Affiliate thereof or any person on its behalf in contravention of the requirements of Rule 903 or 904 of Regulation S, as applicable;
(iv)the transaction is not part of a plan or scheme to evade the registration requirements of the U.S. Securities Act; and
(v)the Transferor is not the Issuer, a distributor of the [Class A Notes] [Class B Notes] [Backstop Notes], an Affiliate of the Issuer or any such distributor (except any officer or director who is an Affiliate solely by virtue of holding such position) or a person acting on behalf of any of the foregoing.
(b)with respect to transfers made in reliance on Rule 144 the Transferor certifies that the [Class A Notes] [Class B Notes] [Backstop Notes] are being transferred in a transaction permitted by Rule 144 under the U.S. Securities Act.
You, the Issuer, the Guarantors and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
[Name of Transferor]
By:
Name:
Title:
Date:
cc:
Attention:
B-2
EXHIBIT C
[FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE TO RESTRICTED GLOBAL NOTE]
(Transfers pursuant to § 2.06(b)(iii) of the Indenture)
U.S. Bank Trust Company, National Association
U.S. Bank Global Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
St. Xxxx, Minnesota 55017
EP-MN-WS3C
Attention: Transfer Agent
Re: [Class A Notes] [Class B Notes] [ Backstop Notes]
Reference is hereby made to the Indenture dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”) among NCL Corporation Ltd., a Bermuda exempted company, as Issuer, the guarantors party thereto, as Guarantors, and U.S. Bank Trust Company, National Association, as Trustee and as Security Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to $_____________ aggregate principal amount at maturity of [Class A Notes] [Class B Notes] [Backstop Notes] that are held in the form of a Regulation S Global Note with DTC (CUSIP No.: [●]30 ISIN No.: [●]31) in the name of [name of transferor] (the “Transferor”) to effect the transfer of the [Class A Notes] [Class B Notes] [Backstop Notes] in exchange for an equivalent beneficial interest in a Restricted Global Note (CUSIP No.: [●]32; ISIN No.: [●]33).
In connection with such request, and in respect of such [Class A Notes] [Class B Notes] [Backstop Notes] the Transferor does hereby certify that such Notes are being transferred in accordance with the transfer restrictions set forth in the [Class A Notes] [Class B Notes] [Backstop Notes] and that:
CHECK ONE BOX BELOW:
the Transferor is relying on Rule 144A under the U.S. Securities Act for exemption from the registration requirements thereunder; it is transferring such [Class A Notes] [Class B Notes] [Backstop Notes] to a person it reasonably believes is a QIB as defined in Rule 144A that purchases for its own account, or for the account of a qualified institutional buyer, and to whom the Transferor has given notice that the transfer is made in reliance on |
30 | [Class A Issue Date Regulation S CUSIP: G6436Q AR7] [Class B Issue Date Regulation S CUSIP: [●]] [Backstop Issue Date Regulation S CUSIP: [●]] |
31 | [Class A Issue Date Regulation S ISIN: USG6436QAR77] [Class B Issue Date Regulation S ISIN: [●]] [Backstop Issue Date Regulation S ISIN: [●]] |
32 | [Class A Issue Date Rule 144A CUSIP: 62886H BM2] [Class B Issue Date Rule 144A CUSIP: [●]] [Backstop Issue Date Rule 144A CUSIP: [●]] |
33 | [Class A Issue Date Rule 144A ISIN: US62886HBM25] [Class B Issue Date Rule 144A ISIN: [●]] [Backstop Issue Date Rule 144A ISIN: [●]] |
C-1
Rule 144A and the transfer is being made in accordance with any applicable securities laws of any state of the United States; or
o | the Transferor is relying on an exemption other than Rule 144A from the registration requirements of the U.S. Securities Act, subject to the Issuer’s and the Trustee’s right prior to any such offer, sale or transfer to require the delivery of an Opinion of Counsel, certification and/or other information satisfactory to each of them. |
You, the Issuer, the Guarantors, and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
[Name of Transferor]
By:
Name:
Title:
Date:
cc:
Attention:
C-2
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of [●], 20[●] (this “Supplemental Indenture”) by and among NCL Corporation Ltd. (the “Issuer”), the other parties listed as New Guarantors on the signature pages hereto (each, a “New Guarantor” and, collectively, the “New Guarantors”) and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”).
W I T N E S E T H
WHEREAS, the Issuer, the Trustee and the other parties thereto have heretofore executed and delivered an Indenture, dated as of February 22, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), providing for the issuance of Class A Notes, Class B Notes and Backstop Notes of the Issuer (collectively, the “Notes”);
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture; and
WHEREAS, all necessary acts have been done to make this Supplemental Indenture a legal, valid and binding agreement of each New Guarantor in accordance with the terms of this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
Definitions
AGREEMENT TO BE BOUND
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Miscellaneous
[Remainder of Page Intentionally Left Blank]
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
ISSUER:
NCL CORPORATION LTD.
By:
Name:
Title:
NEW GUARANTORS:
[NEW GUARANTORS]
By:
Name:
Title:
TRUSTEE:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
Name:
Title:
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