EXHIBIT 2.18
CONSTELLATION INC.
(as Borrower)
CREDIT AGRICOLE INDOSUEZ
and SOCIETE GENERALE
(as Lead Managers and Lenders)
BUYER CREDIT AGREEMENT
CONSTELLATION
(Hull n(degree) U31)
TABLE OF CONTENTS
PAGE
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ARTICLE I - DEFINITIONS.....................................................3
ARTICLE II - AVAILABILITY OF THE CREDIT.....................................7
ARTICLE III - CONDITIONS PRECEDENT TO DRAWING...............................8
ARTICLE IV - DRAWING UNDER THE CREDIT-BORROWER'S IRREVOCABLE
PAYMENT INSTRUCTIONS........................................13
ARTICLE V - REPAYMENT OF PRINCIPAL - INTEREST - PROMISSORY NOTES...........15
ARTICLE VI - CLAIMS OR DEFENSES MAY NOT BE OPPOSED TO THE LENDERS..........18
ARTICLE VII - CREDIT INSURANCE PREMIUMS....................................19
ARTICLE VIII - FEES........................................................20
ARTICLE IX - TAXES - COSTS AND RELATED CHARGES.............................21
ARTICLE X - DECLARATIONS...................................................23
ARTICLE XI - UNDERTAKINGS..................................................24
ARTICLE XII - PREPAYMENT...................................................27
ARTICLE XIII - INTEREST ON LATE PAYMENTS...................................28
ARTICLE XIV - ACCELERATION - EVENTS OF DEFAULT.............................29
ARTICLE XV - ACCELERATION - OTHER EVENTS...................................33
ARTICLE XVI - CURRENCY OF PAYMENT - DOMICILIATION..........................34
ARTICLE XVII - SECURITY....................................................35
(i)
PAGE
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ARTICLE XVIII - APPLICATION OF SUMS RECEIVED...............................36
ARTICLE XIX ...............................................................37
ARTICLE XX - GOVERNING LAW.................................................38
ARTICLE XXI - ARBITRATION..................................................39
ARTICLE XXII - APPENDICES..................................................40
ARTICLE XXIII - NOTICES AND SERVICES OF PROCESS............................41
ARTICLE XXIV - MISCELLANEOUS...............................................43
ARTICLE XXV - COMING INTO FORCE............................................44
APPENDIX I - DOCUMENTS TO BE PRODUCED BY THE SUPPLIER
TO SOCIETE GENERAL..........................................45
APPENDIX II - PART 1
SPECIMEN OF PROMISSORY NOTE A.....................................46
APPENDIX II - PART 2
SPECIMEN OF PROMISSORY NOTE B.....................................47
APPENDIX III - PART 1
SPECIMEN OF A LETTER CONTAINING A JOINT INTEREST MANDATE
TO BE SENT BY THE BORROWER TO SOCIETE GENERALE ...................48
APPENDIX III - PART 2
LENDER'S LETTER OF UNDERTAKING....................................51
APPENDIX IV
GUARANTOR's LETTER OF UNDERTAKING.................................52
(ii)
PAGE
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APPENDIX V - PART I
INDEPENDENT FIRST DEMAND GUARANTEE TO SOCIETE GENERALE............55
APPENDIX V - PART II
INDEPENDENT FIRST DEMAND GUARANTEE TO CREDIT AGRICOLE INDOSUEZ....58
APPENDIX VI
APPROVED CHARTERER'S LETTER OF UNDERTAKING........................61
(iii)
THIS BUYER CREDIT AGREEMENT (this "AGREEMENT") is entered into this 18th day of
December, 2001
BETWEEN
CONSTELLATION INC., a wholly owned Subsidiary of Royal Caribbean Cruises Ltd.
and a company incorporated in Liberia and having its registered office at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, represented by Xxxxxx Xxxxx, an officer being
duly authorized (the "BORROWER");
SOCIETE GENERALE, a SOCIETE ANONYME with a capital of EUR 529,060,522.50 and
registered number R.C.S. Paris B 552 120 222, of 00 xxxxxxxxx Xxxxxxxxx, 00000
Xxxxx, Xxxxxx, represented by Isabelle Seneca ("SOCIETE GENERALE"); and
CREDIT AGRICOLE INDOSUEZ, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE
SURVEILLANCE with a capital of EUR 893,780,352 and registered number R.C.S.
Nanterre 304 187 701, of 0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx 00000 Xxxxxxxxxx,
Xxxxxx, represented by Xxx Xxxxxxx Bygodt and Xxxxxx Xxxxxxx ("CREDIT AGRICOLE
INDOSUEZ," and referred to together with SOCIETE GENERALE, as the "LENDERS" and
individually, each as a "LENDER").
WHEREAS
A. A shipbuilding contract was signed on March 16, 1998, and modified by
its amendment N(degree) 2 signed on February 19, 1999, (the
"CONTRACT"), between Royal Caribbean Cruises Ltd. ("RCCL") a company
incorporated in Liberia and having its registered office at 00 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx and Chantiers de l'Atlantique S.A. (the
"SUPPLIER") whose registered office is at 00 xxxxxx Xxxxxx, 00000
Xxxxx, Xxxxxx, for the design, construction and delivery of one
passenger cruise vessel having hull number U-31 (the "VESSEL") to be
delivered on or about April 26, 2002.
B. The contract price of the Vessel is US$ 343,994,500 (subject to
adjustment in accordance with the terms of the Contract) (the "CONTRACT
PRICE"), payable at the times and in the manner specified in the
Contract. The terms of payment of the Contract Price are as follows :
o US$ 17,199,725 payable no later than five Banking Days upon
signature of the amendment N(degree)2;
o US$ 17,199,725 payable on May 1, 2000;
o US$ 17,199,725 payable on November 1, 2000; and
o the remainder payable upon delivery and acceptance of the Vessel.
C. The Contract may be modified from time to time with respect to certain
change orders to the specifications of the Vessel (the "CHANGE
ORDERS"), which such Change Orders are to be expressed in terms of EUR
and/or FRF.
D. RCCL has entered into certain forward exchange contracts with third
parties in order to cover the exchange risk involved by the invoicing
in EUR and/or FRF of the Change Orders.
E. On or prior to the Delivery Date, RCCL will assign all its rights and
obligations under the Contract to the Borrower, and the Borrower will
accept all such rights and obligations under the Contract in an
Assignment of Rights (the "ASSIGNMENT OF RIGHTS").
F. The Lenders agree to make available to the Borrower a credit facility
on the terms and conditions set out herein for the purpose of assisting
the Borrower to finance part of the Contract Price including the US$
equivalent amount of the Change Orders.
NOW THEREFORE, it is agreed as follows:
2
ARTICLE I - DEFINITIONS
In this Agreement (including the Whereas clauses) and the Appendices (all of
which form an integral part of this Agreement) the following expressions shall
have the meanings set out opposite them below.
"APPROVED CHARTERER" means either (i) the Guarantor, or (ii) a wholly owned
Subsidiary of the Guarantor.
"APPROVED CHARTERER'S LETTER OF UNDERTAKING" means the letter of undertaking to
the Lenders to be signed by the Approved Charterer with respect to the Bare Boat
Charter in the form and substance attached hereto as Appendix VI.
"ASSIGNMENT OF INSURANCES" means an assignment to be entered into between the
Borrower, the Approved Charterer, if applicable, and the Lenders and to be in
the agreed form.
"ASSIGNMENT OF REQUISITION PROCEEDS" means an assignment to be entered into
between the Borrower, the Approved Charterer, if applicable, and the Lenders and
to be in the agreed form.
"ASSIGNMENT OF RIGHTS" means that certain Assignment of Rights to be dated on or
prior to the Delivery Date and to be in the agreed form whereby RCCL will assign
all its rights and obligations under the Contract to the Borrower, and the
Borrower will accept all such rights and obligations under the Contract.
"BANKING DAY" means a full day on which commercial banks are open for business
and dealing in deposits in London, New York City and Paris.
"BARE BOAT CHARTER" means a bare boat charter entered into between the Borrower
and an Approved Charterer with respect to the Vessel as approved by the Lenders,
provided that, if the Bare Boat Charter differs from the Bare Boat Charter in
agreed form, such approval will not be reasonably withheld, in accordance with
the provisions of Article XI, paragraph (a)(7) of this Agreement.
"CHANGE ORDERS" means those certain change orders to the specifications of the
Vessel as may be agreed to from time to time by the Borrower and the Supplier,
the net cost of which is payable at delivery.
"CHANGE ORDER AMOUNT" means the net cost of the Change Orders denominated in EUR
and/or FRF.
"COFACE" means Compagnie Francaise d'Assurance pour le Commerce Exterieur.
"COMPULSORY REQUISITION" means the requisition of the Vessel for title or other
compulsory acquisition thereof (otherwise than by way of requisition for hire).
3
"CONTRACT" means that certain contract entered into between RCCL and the
Supplier dated March 16, 1998, and modified by its amendment N(degree) 2 signed
on February 19, 1999, as from time to time amended, in respect of the design,
construction and delivery of the Vessel, to be assigned to and assumed by the
Borrower pursuant to the Assignment of Rights.
"CONTRACT PRICE" means the total price payable by the Borrower to the Supplier
for the Vessel in accordance with the Contract.
"CREDIT" means the credit available to the Borrower hereunder.
"DELIVERY DATE" means the date and time stated in the Protocol of Delivery and
Acceptance.
"DOLLAR" and "US$" mean the lawful currency of the United States of America and,
in respect of all payments to be made hereunder, mean funds which are for same
day settlement in the New York Clearing House Interbank Payments System (or such
other funds as may at the relevant time be customary for the settlement of
international banking transactions denominated in United States dollars).
"EUR" means the single currency of the member states of the European Union
participating in the third stage of the European economic and monetary union
pursuant to the treaty establishing the European Union (as amended from time to
time), which currency replaced FRF since January 1, 2000.
"EVENT OF DEFAULT" means any one of the events specified in Article XIV
paragraph (a) hereof.
"FRF" means French Francs, which since January 1, 2000 is a subdivision of EUR
such that 1 EUR equals 6.55957 FRF.
"FORWARD RATE" means the weighted EUR/USD and/or FRF/USD exchange rate of the
forward exchange contracts entered into by the Borrower to hedge its EUR and/or
FRF exposure in respect of the Change Orders.
"GUARANTEES" means the two (2) irrevocable, unconditional, first demand,
independent guarantees, in the form attached hereto as Appendix V, granted by
RCCL in its capacity as Guarantor on or prior to the Delivery Date in favor of
each of the Lenders guaranteeing the payment of a maximum amount determined on
the basis of the aggregate amount of the Promissory Notes of principal and
interest plus the credit insurance premium, interest on late payments, fees,
breakage costs, other expenses and related costs.
"GUARANTOR" means Royal Caribbean Cruises Ltd., a company incorporated in
Liberia and having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx,
in its capacity as Guarantor under the Guarantees.
4
"GUARANTOR'S LETTER OF UNDERTAKING" means the letter of undertaking to the
Lenders to be signed by the Guarantor in the form attached hereto as Appendix
IV.
"INTENDED DELIVERY DATE" means:
(i) prior to the delivery of the Borrower's notice referred to at
Article III paragraph (b) hereof, the date for delivery of the
Vessel referred to in Whereas A to this Agreement; and then
(ii) following service of the Borrower's notice referred to at
Article III paragraph (b) hereof, the date for delivery of the
Vessel specified in such notice.
"INSURANCE" means the insurance policies and coverage required pursuant to the
Mortgages.
"LIMIT DATE FOR DRAWING" means the date specified in Article IV after which no
drawing under this Agreement may be made.
"MARITIME REGISTRY" means the maritime registry which the Borrower will specify
to the Lenders no later than three months before the Intended Delivery Date,
being that of the Republic of Liberia or such other registry as the Lenders may
in their discretion agree.
"MATURITY DATE" means the date on which a Promissory Note is payable.
"MORTGAGES" means the two maritime (preferred) mortgages over the Vessel sharing
same first priority in favor of each of the Lenders, to be granted as provided
for in Article XVII hereof and to be in the agreed form.
"PROMISSORY NOTE(S)" means one or more of the promissory notes referred to in
Article V hereof.
"PROTOCOL OF DELIVERY AND ACCEPTANCE" means the protocol of delivery and
acceptance of the Vessel to be signed by the Borrower and the Supplier in
accordance with Article VI.2 of the Contract.
"STATE OF REGISTRATION" means the Republic of Liberia, or such other state as
the Lenders may in their discretion agree.
"SUBSIDIARY" means with respect to the Guarantor, any corporation of which more
than 50% of the outstanding capital stock having ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly owned by the Guarantor, by the Guarantor
and one or more other Subsidiaries of the Guarantor, or by one or more other
Subsidiaries of the Guarantor.
5
"SUPPLIER" means Chantiers de l'Atlantique SA, a company incorporated in France
under registration N(degree) RCS Paris B 347 951 204 and having its registered
office at 00, xxxxxx Xxxxxx, 00000 Xxxxx, Xxxxxx.
"TOTAL LOSS" means the actual or constructive or compromised or agreed or
arranged total loss of the Vessel, including any such total loss as may arise
during a requisition for hire.
"TOTAL LOSS DATE" means:
(i) in the case of an actual total loss of the Vessel, the actual
date on which the Vessel was lost or, if such date is not
known, the date on which the Vessel was last reported; or
(ii) in the case of a constructive total loss of the Vessel, or in
the case of a compromised or arranged total loss of the
Vessel, the date of the event giving rise to the claim for
such constructive total loss or to the claim for a compromised
or arranged total loss.
"VESSEL" means the passenger cruise vessel referred to in Whereas A of this
Agreement and more specially described in the Contract, and, to the extent the
context permits, includes all manuals, logs and technical records relating to
the said vessel.
References in this Agreement to a document "in the agreed form" are to the form
of the relevant document which is initialed for the purposes of identification
by the parties hereto or to such other form as the parties hereto may from time
to time agree, subject to such modification as may be required in good faith by
the Lenders in order to take account of any relevant changes in any laws,
regulations, case law and generally recognized insurance practice relevant to
cruise liners.
6
ARTICLE II - AVAILABILITY OF THE CREDIT
The Lenders shall make available to the Borrower a credit of a maximum amount of
US$ 275,195,600 (two hundred seventy five million one hundred ninety five
thousand six hundred Dollars) to enable it to pay to the Supplier up to 80% of
the Contract Price of the Vessel.
The Credit may only be used to pay for goods and services of French origin.
However, within the limits and under the conditions fixed by the French
authorities, it shall be extended to cover goods and services incorporated in
deliveries made by the Supplier and originating from countries other than the
Borrower's country and France, which have been sub-contracted by the Supplier
and therefore remain under its responsibility.
In the event that the Contract Price for the Vessel increases pursuant to the
terms of the Contract, the Lenders agree to increase the maximum amount of the
Credit by an amount of up to US$ 46,783,252 (being 80% of 17% of US$
343,994,500) to finance up to 80% of the US$ counter-value as at the Forward
Rate of the Change Order Amount if the Borrower so requests by simple written
notification to SOCIETE GENERALE on behalf of the Lenders with a certificate of
the Borrower stating the Forward Rate and a copy of the commercial invoice(s)
for such Change Orders or any such other similar document issued by the Supplier
stating the Change Order Amount.
Any increase in furtherance of the preceding paragraph will be set out in an
addendum to this Agreement to be signed at the latest five (5) Banking Days
before the Intended Delivery Date.
7
ARTICLE III - CONDITIONS PRECEDENT TO DRAWING
The Borrower may only draw under the Credit in accordance with the terms set out
in Article IV below when the following conditions have been fulfilled to the
satisfaction of the Lenders and provided no Event of Default shall have occurred
and be continuing:
(a) WITHIN 45 DAYS OF THE EXECUTION OF THIS AGREEMENT:
(1) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of an opinion of legal counsel to the Lenders
as to Liberian law, together with the corporate
documentation of the Borrower supporting the opinion,
including the Articles of Association and By-laws as
filed with the competent authorities, to the effect
that:
(i) the Borrower has been duly organized and is
validly existing in good standing as a
corporation under the law of the Republic of
Liberia;
(ii) this Agreement falls within the scope of the
Borrower's corporate purpose as defined by
its Articles of Association and By-laws;
(iii) the Borrower's representatives named in the
opinion were at the date of this Agreement
fully empowered to sign this Agreement;
(iv) either all administrative requirements
applicable to the Borrower (whether in
Liberia or elsewhere), concerning the
transfer of funds abroad and acquisitions of
Dollars to meet its obligations hereunder
have been complied with, or that there are
no such requirements; and
(v) this Agreement is the legal, valid and
binding obligation of the Borrower
enforceable in accordance with its terms
(containing such exceptions as are standard
for opinions of this type).
(2) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of an executed copy of the Contract.
(b) NO LATER THAN TEN (10) BANKING DAYS BEFORE THE INTENDED
DELIVERY DATE:
(1) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of notification from the Borrower of the
Intended Delivery Date.
(2) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of a certificate of the treasurer of the
Borrower stating the Forward Rate.
8
(3) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of a notice from the Borrower, signed by a
duly authorized signatory of the Borrower, specifying
the US$ amount to be drawn under the Credit being the
counter-value of the Change Order Amount in the limit
set out in Article II and including:
(i) the Change Order Amount;
(ii) the part of the Change Order Amount for
which the financing is required under this
Agreement; and
(iii) the US$ counter-value of such amount at the
Forward Rate.
(c) NO LATER THAN THE INTENDED DELIVERY DATE:
(1) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of an opinion of legal counsel to the Lenders
as to Liberian law, together with the corporate
documentation of the Guarantor supporting the
opinion, including the Articles of Association and
By-laws as filed with the competent authorities, to
the effect that:
(i) the Guarantor has been duly organized and is
validly existing in good standing as a
corporation under the law of the Republic of
Liberia;
(ii) the Guarantees and the Guarantor's Letter of
Undertaking fall within the scope of the
Guarantor's corporate purpose as defined by
its Articles of Association and By-laws;
(iii) the Guarantor's representatives named in the
opinion were at the date of the Guarantees
fully empowered to sign the Guarantees and
the Guarantor's Letter of Undertaking;
(iv) either all administrative requirements
applicable to the Guarantor (whether in
Liberia or elsewhere), concerning the
transfer of funds abroad and acquisitions of
Dollars to meet its obligations under the
Guarantees have been complied with, or that
there are no such requirements; and
(v) the Guarantees and the Guarantor's Letter of
Undertaking are the legal, valid and binding
obligations of the Guarantor enforceable in
accordance with their terms (containing such
exceptions as are standard for opinions of
this type).
9
(2) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of
(i) an executed copy of the Assignment of
Rights;
(ii) the executed Guarantees; and
(iii) the executed Guarantor's Letter of
Undertaking;
(3) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of the Promissory Notes together with the
letter of joint interest mandate relating thereto
made out in accordance with Appendix II and Appendix
III - Part 1 hereafter; and
(4) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of a legal opinion of counsel to the Lenders
together with the corporate documentation of the
Borrower supporting such opinions and a certificate
of a competent officer of the Borrower containing
specimen signatures of the persons authorized to sign
the documents on behalf of the Borrower, confirming
that:
(i) the Lenders may continue to rely on the
legal opinion given pursuant to Article III
paragraphs (a)(1)(i), (ii), (iv) and (v)
hereof;
(ii) the Promissory Notes and the said letter of
joint interest mandate have been duly
executed by a fully empowered representative
of the Borrower;
(iii) the Mortgages, the Promissory Notes, the
letter of joint interest mandate relating
thereto, the Assignment of Insurances, and
the Assignment of Requisition Proceeds fall
within the scope of the Borrower's corporate
purpose as defined by its Articles of
Association and By-laws and are binding on
it; and
(iv) the Borrower's representatives named in the
opinion are fully empowered to sign the
Protocol of Delivery and Acceptance, the
Assignment of Insurances, the Assignment of
Requisition Proceeds, and the Mortgages.
(5) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of insurance documents in form and substance
reasonably satisfactory to the Lenders confirming
that the Insurances have been effected and will be in
full force and effect on the Delivery Date.
10
The parties hereto agree that they will make reasonable
efforts to satisfy the conditions precedent referred to in
this Article III paragraph (c) thirty (30) days prior to the
Intended Delivery Date.
(d) ON THE DELIVERY DATE:
(1) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of evidence of payment to the Supplier of:
(i) the three installments of the Contract
Price; and
(ii) any other part of the Contract Price not
financed hereunder;
(2) Due execution and effective registration in the
Maritime Registry of the Mortgages;
(3) Delivery to the Lenders of the Assignment of
Insurances together with relevant notices of
assignment and the Assignment of Requisition
Proceeds;
(4) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of all amounts which are due and payable
hereunder by the Borrower on or prior to the Delivery
Date; and
(5) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of a legal opinion of counsel to the Lenders
as to Liberian law confirming:
(i) the valid registration of the Vessel in the
Maritime Registry; and
(ii) the Mortgages over the Vessel have been
validly registered in the Maritime Registry;
and
(6) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of a certificate from the Borrower, signed by
an authorized representative of the Borrower,
attesting that the declarations contained in Article
X hereof are true and correct as of the Delivery Date
in consideration of the facts and circumstances
existing as of the Delivery Date.
(7) Receipt by SOCIETE GENERALE acting on behalf of the
Lenders of documentary evidence satisfactory to the
Lenders that the EUR and/or FRF amount referred to in
Article IV paragraph (a)(ii) is credited or shall be
credited to the account of SOCIETE GENERALE on or
prior to the Delivery Date.
11
(8) Receipt by Societe Generale acting on behalf of the
Lenders of the documents mentioned in Appendix I.
In addition, the Lenders shall not be required to make the Credit available
unless and until the COFACE insurance cover documentation satisfactory to the
Lenders relating to the transactions contemplated hereby has been finally
constituted and received by the Lenders. The Lenders shall take all necessary
steps, in a timely fashion, to enable COFACE to issue such insurance cover
documentation in due time and shall notify the Borrower immediately upon
receiving a satisfactory credit insurance policy from COFACE.
12
ARTICLE IV - DRAWING UNDER THE CREDIT-BORROWER'S IRREVOCABLE PAYMENT
INSTRUCTIONS
The Lenders shall not be obliged to fulfill their obligations to make the Credit
available except by paying the Supplier on behalf of and in the name of the
Borrower, and by reimbursing the Borrower the US$ counter-value based on the
Forward Rate of the part of the Change Order Amount that is to be paid to the
Supplier in accordance with paragraph (a)(ii) hereunder.
The Borrower hereby instructs the Lenders in accordance with Article II above,
upon the conditions and against presentation to SOCIETE GENERALE acting on
behalf of the Lenders of the documents provided for in Appendix I:
(a) to pay the Supplier:
(i) the US$ amount remaining due under the Contract up to
an amount equal to the lesser of US$ 275,195,600 or
80% of the Contract Price (not taking into account
the Change Order Amount), plus
(ii) up to the lesser of 80% of the Change Order Amount or
of the EUR and/or FRF amount that is the
counter-value as at the Forward Rate of US$
46,783,252 (being 17% of 80% of US$ 343,994,500) upon
receiving the same from RCCL, and
(b) to reimburse RCCL, by drawing under the Credit, the US$ amount
that is the counter-value at the Forward Rate of the amount
referred to in paragraph (a)(ii) above.
The present mandate, given in the joint interest of the parties, is in
consequence irrevocable.
Said payment to the Supplier will be made upon the Delivery Date of the Vessel
during usual banking hours to the Supplier's account as specified by the
Supplier in accordance with the Contract after the receipt by SOCIETE GENERALE
and its approval of the documents provided for in Appendix I.
The only responsibility of SOCIETE GENERALE in examining the documents mentioned
in Appendix I shall be to ascertain that they appear on their face to be in
accordance with the terms and conditions of this Agreement as defined in the
Uniform Customs and Practice for Documentary Credits - ICC Publication 500 (1993
revision).
The Borrower expressly acknowledges that the payment terms set out in this
Article may only be modified with the agreement of the Supplier, the Lenders and
the Borrower.
13
Drawing may not be made under this Agreement (and the Credit shall not be
available) after January 30, 2003, or the date of the Protocol of Delivery and
Acceptance, whichever is the earlier, such earlier date being hereinafter called
the "LIMIT DATE FOR DRAWING."
However, upon documented application by the Borrower, the Lenders will use their
best efforts to postpone the above date of January 30, 2003, by addendum to this
Agreement, it being understood that such extension is subject to the prior
written approval of COFACE.
14
ARTICLE V - REPAYMENT OF PRINCIPAL - INTEREST - PROMISSORY NOTES
A. REPAYMENT OF PRINCIPAL
The Borrower shall repay to the Lenders all amounts paid on behalf of the
Borrower under the terms of this Agreement.
Repayments will be made by the Borrower in 17 (seventeen) equal and consecutive
half yearly installments, the first of which will become due six months after
the Delivery Date.
The installments of principal will be evidenced by two sets each of 17
(seventeen) Promissory Notes (i.e. 34 (thirty-four) Promissory Notes) executed
by the Borrower to the order of SOCIETE GENERALE as regards one set ("SET PA")
and CREDIT AGRICOLE INDOSUEZ as regards the other set ("SET PB"). They will be
remitted to SOCIETE GENERALE no later than the Intended Delivery Date of the
Vessel, with a letter of joint interest mandate which will be drawn up according
to Part 1 of Appendix III. These Promissory Notes will be marked PA1 to PA17 for
Set PA and PB1 to PB17 for Set PB.
The amounts on these Promissory Notes of principal, notified by SOCIETE GENERALE
acting on behalf of the Lenders no later than the Intended Delivery Date, will
be determined in accordance with the second paragraph of this Article V.A. The
Maturity Dates of these Promissory Notes will be left in blank.
At the time of the drawing and when the Delivery Date is known, SOCIETE GENERALE
shall for the two sets of Promissory Notes of principal:
(1) insert the Maturity Dates on the Promissory Notes taking as
reference the Delivery Date;
(2) modify, if necessary, the amounts indicated on each Promissory
Note corresponding to 1/34 of the total amount of the Credit
disbursed; and
(3) release the Promissory Notes to SOCIETE GENERALE (with respect
to Set PA) and to CREDIT AGRICOLE INDOSUEZ (with respect to
set PB),
in accordance with the terms and conditions of the above-mentioned letter of
joint interest mandate.
B. PAYMENT OF INTEREST
Interest will be payable on the amount of the Credit drawn under this Agreement
free of any deductions or withholdings, at the rate hereafter set out.
15
Interest will be calculated on the balance of the Credit from time to time
outstanding beginning on the Delivery Date and will be payable in arrears every
six months on the same dates as the installments of principal.
Interest will be computed for the exact number of days elapsed divided by 360
days.
Interest will be payable at a fixed rate of eight per cent (8.00%) per annum,
which rate includes an amount of zero point forty one per cent (0.41%), related
to the COFACE insurance premiums.
The half yearly installments of interest will be evidenced by two sets each of
17 (seventeen) Promissory Notes (i.e. 34 (thirty-four) Promissory Notes)
executed by the Borrower to the order of SOCIETE GENERALE as regards one set
("SET IA") and CREDIT AGRICOLE INDOSUEZ as regards the other set ("SET IB"),
marked IA1 to IA17 for Set IA and IB1 to IB17 for Set IB.
The amounts of these Promissory Notes of interest will be determined in
reference to the Promissory Notes of principal and in accordance with the
interest provisions in this Article V.B.
These Promissory Notes will be issued by the Borrower with the Maturity Dates
left in blank and remitted to SOCIETE GENERALE. SOCIETE GENERALE shall fill in
the Maturity Dates, modify the amount if necessary, and release in the same way
as the Promissory Notes of principal, in accordance with the terms and
conditions of the letter containing a joint interest mandate drawn up as per
Part 1 of Appendix III.
C. PROVISIONS COMMON TO ALL THE PROMISSORY NOTES
All the Promissory Notes of principal and interest will be denominated in
Dollars and domiciled with (i.e. payable at) SOCIETE GENERALE, Paris. They will
be in the form set out in Appendix II and will state as consideration "(for
value given pursuant to the Credit Agreement signed on ...)".
All the Promissory Notes of principal and interest shall have the character
attributed to them by French law and will fulfill all the conditions of form and
substance required by that law. The Borrower hereby accepts all obligations
which result from the application of French law.
The Borrower hereby expressly exempts the Lenders and holders from the need to
protest these notes.
D. SPECIFIC PROVISIONS REGARDING THE PAYMENT DATES OF ALL SUMS
EVIDENCED BY PROMISSORY NOTES
Any payment due by the Borrower under this Agreement as evidenced by a
Promissory Note whose Maturity Date does not fall on a Banking Day shall be
16
postponed to the following Banking Day. Such postponement shall not entail any
modification of the Maturity Dates which will remain at six monthly intervals
from the Delivery Date.
Where these provisions apply, the Maturity Dates and the amounts of the
Promissory Notes will not be modified, but the Promissory Notes shall be paid on
the dates determined in accordance with the above procedure. In such event,
SOCIETE GENERALE acting on behalf of the Lenders shall, one month before the
payment date, send to the Borrower a statement by facsimile indicating the
amount of additional interest at the fixed rate specified in Article V.B. above
accrued on the amount of the Promissory Note of principal, the payment of which
is postponed in accordance with the provisions of this Article V.D. from the
Maturity Date of such Promissory Note until the first Banking Day immediately
following such Maturity Date. Such additional interest shall be paid on the
Maturity Date indicated in such facsimile.
17
ARTICLE VI - CLAIMS OR DEFENSES MAY NOT BE OPPOSED TO THE LENDERS
Since the Lenders are in no way party to the Contract, the Borrower may not
escape liability under the terms of this Agreement by opposing to the Lenders
claims or defenses of any kind whatsoever arising under the Contract, and in
particular from its performance, or from any other relationship between the
Borrower and the Supplier.
Furthermore, the Borrower understands that the Lenders are not a party to the
forward exchange contracts entered into by RCCL with respect to the Change
Orders. The Borrower hereby agrees that the Lenders have assumed no
responsibility thereunder, and the Borrower may not avoid liability under the
terms of this Agreement or the Promissory Notes, by raising any claims or
defences of any kind it may otherwise have under such contracts. The Borrower
further waives any and all rights and defences it might otherwise have against
the Lenders resulting from or arising out of the performance of such forward
exchange contracts by any party thereto.
18
ARTICLE VII - CREDIT INSURANCE PREMIUMS
The Borrower undertakes to repay the Lenders the premiums due to COFACE under
the insurance policy related to this Agreement. These premiums are due by the
Borrower and will be paid by the Lenders to COFACE upon the drawing of the
Credit under this Agreement (provided that no such premiums will be due if the
Credit is not drawn).
The premiums will be financed as per Article V.B. above and will be repaid by
the Borrower by paying additional interest computed at a rate of zero point
forty one per cent (0.41%) per annum. This additional amount is included in the
rate set out in Article V.B. above. The premiums so included in the rate of
interest are due in any event.
Consequently, in case of either prepayment or acceleration of the Credit
pursuant to Articles XII and XIV hereafter, the Borrower undertakes to repay the
Lenders, upon receipt of SOCIETE GENERALE's detailed statement stating the
amount of such insurance premiums remaining due, the amount of the insurance
premium not yet reimbursed by the payments of interest already made by the
Borrower.
If there is no prepayment or acceleration of the Credit pursuant to Articles XII
and XIV hereafter, the Borrower will be released from its obligation of
repayment of credit insurance premiums to the Lenders only after full payment of
all the Promissory Notes of interest.
19
ARTICLE VIII - FEES
The following fees shall be paid to Societe Generale acting on behalf of the
Lenders by the Borrower as required hereunder:
(a) A MANAGEMENT FEE of US$ 75,000 shall be paid as follows:
- US$ 37,500, upon signature of the Agreement; and
- US$ 37,500, on the date falling on the earlier of (i)
the Delivery Date or (ii) the date of early
termination of the Agreement pursuant to Articles XIV
and XV or the date of cancellation of the Credit by
the Borrower pursuant to Article XXV.
(b) A COMMITMENT FEE of 0.125 % p.a. shall be paid for the period
from the date of signature of the Agreement till the Delivery
Date of the Vessel or the Limit Date for Drawing, or the date
of receipt by SOCIETE GENERALE acting on behalf of the Lenders
of the written termination notice sent by the Borrower as
described in Article XXV, whichever is the earliest. This
commitment fee shall be calculated on the undrawn amount of
the Credit at the date of signature of the Agreement, and paid
in arrears on such date falling six months after the date of
signature of the Agreement and on each date falling at the end
of each following consecutive six month period, to the
exception of the commitment fee due in respect of the last
period, which shall be paid upon Delivery Date of the Vessel.
The commitment fee shall be calculated on the actual number of
days elapsed divided by 360.
(c) AN AGENCY FEE of US$ 20,000 shall be paid yearly in advance as
from the Delivery date of the Vessel, and then, on each
anniversary date thereof, until total repayment of the Credit.
20
ARTICLE IX - TAXES - COSTS AND RELATED CHARGES
(a) All present and/or future taxes, levies and duties whatsoever
legally payable in France as a consequence of the signature or
performance of this Agreement shall be paid by the Lenders.
(b) All present and/or future taxes, levies and duties whatsoever
legally payable outside France (other than taxes payable by
each of the Lenders on its overall net income) as a
consequence of the signature or performance of this Agreement
shall be paid by the Borrower. In consequence, all payments of
principal and interest, whether or not evidenced by Promissory
Notes, interest on late payments, compensation, costs, fees
and related charges, due in connection with this Agreement
shall be made without any deduction or withholding in respect
of taxes, levies and duties mentioned in this paragraph (b) of
this Article IX. The Borrower therefore hereby agrees
expressly that if for any reason full payment of the above
amounts is not made, it will immediately pay the Lenders the
sums necessary to compensate exactly the effect of the
deductions or withholdings made in respect of taxes, levies
and duties mentioned in this paragraph (b) of this Article IX.
If the Borrower fails to perform this obligation, the Lenders
shall be entitled, in accordance with Article XIV, either not
to make available the Credit or, as the case may require, to
require immediate repayment of the Credit.
(c) The Borrower undertakes to pay to the Lenders, upon demand,
all reasonable costs and expenses, duties and fees, incurred
by the Lenders in connection with the negotiation, preparation
and execution of all agreements, guarantees, security
agreements and related documents entered into, or to be
entered into, for the purpose of the transaction contemplated
hereby (except the legal expenses incurred by the Lenders in
connection with the preparation and negotiation of this
Agreement and the documents in agreed form and the legal
expenses incurred by the Lenders in connection with the
documents to be executed at delivery which will be reimbursed
by the Borrower to Societe Generale acting on behalf of the
Lenders up to the limit of US$ 5,000) as well as all
reasonable costs and expenses, duties and fees incurred by the
Lenders in connection with the registration, filing,
enforcement or discharge of the said guarantees or security
agreements, including without limitation the fees and expenses
of legal advisers and insurance experts, the cost of
registration and discharge of security interests and the
related travel expenses; the Borrower further undertakes to
pay to the Lenders all reasonable costs, expenses, duties and
fees incurred by them in connection with any variation of this
21
Agreement and the related documents, guarantees and security
agreements, any supplements thereto and waiver given in
relation thereto, in connection with the enforcement or
preservation of any rights under this Agreement and/or the
Promissory Notes and/or the related guarantees and security
agreements, including in each case the fees and expenses of
legal advisers, and in connection with the consultations or
proceedings made necessary by the acts of, or failure to act
on the part of the Borrower.
(d) The Borrower undertakes to pay to the Lenders, upon demand,
any costs incurred by the Lenders in funding the Credit in the
event that the Delivery Date is later than the Intended
Delivery Date provided the Borrower has not given the Lenders
with at least three (3) business days notification of such
delay in the Delivery Date.
22
ARTICLE X - DECLARATIONS
The Borrower hereby declares and warrants to each Lender that:
(a) The Borrower is duly incorporated, validly existing and in
good standing under the laws of Liberia and has power to carry
on its business as it is now being conducted and to own its
property and other assets;
(b) The Borrower has the power to execute and perform each of its
obligations under this Agreement and all necessary corporate
and other actions have been taken by the Borrower to authorize
the execution and performance of the same;
(c) The execution and performance by the Borrower of this
Agreement do not contravene any law, regulation, judicial or
administrative decree or conflict with the By-Laws or Articles
of Association of the Borrower;
(d) There are no governmental approvals outside France which are
necessary for the execution and performance by the Borrower of
this Agreement or for this Agreement to be enforceable against
the Borrower, other than those which have already been
obtained;
(e) There are no proceedings before any arbitration tribunal,
court, government agency or administrative body pending or
threatened against the Borrower which, in the reasonable
opinion of the Borrower, are likely to be adversely
determined, and would (if adversely determined) be likely to
(i) materially and adversely affect the financial condition of
the Borrower or impair the ability of the Borrower to pay,
when due, any amounts due hereunder, or (ii) in any material
respect prevent or prohibit the execution or performance of
this Agreement or preclude or impair the exercise by the
Lenders of their rights hereunder;
(f) The Borrower is not in default under any material agreement or
obligation to which it is a party or by which it is bound;
(g) No Event of Default has occurred and is continuing; and
(h) There are at the date of the execution of this Agreement no
notarizations, filings, recordings, registrations or
enrollments in any court, public office or elsewhere in
Liberia which are necessary in order to ensure the legality,
validity, enforceability or admissibility in evidence of this
Agreement and any such notarizations, filings, recordings,
registrations or enrollments as may be necessary as at the
Delivery Date to ensure the legality, validity, enforceability
or admissibility in evidence of this Agreement shall have been
obtained.
23
ARTICLE XI - UNDERTAKINGS
(a) The Borrower hereby undertakes that it shall:
(1) Provide SOCIETE GENERALE, acting on behalf of the
Lenders, with its (or if its financial statements are
consolidated with the Guarantor's, the Guarantor's)
quarterly and annual financial statements promptly
after the Guarantor's financial statements are filed
with the United States Securities and Exchange
Commission;
(2) Promptly advise SOCIETE GENERALE, acting on behalf of
the Lenders, of any event or circumstance which, in
the reasonable opinion of the Borrower, would be
likely to have a material adverse effect on the
Borrower's ability to perform its obligations under
this Agreement, the Mortgages, the Assignment of
Insurances, or the Assignment of Requisition
Proceeds;
(3) Promptly give written notice to SOCIETE GENERALE,
acting on behalf of the Lenders, of any material
litigation or arbitration or administrative or other
proceedings before or of any arbitration tribunal
court, governmental agency or administrative body
affecting the Vessel;
(4) Inform the Lenders within one month of all changes to
its legal form, nature or corporate purpose and shall
supply all supporting documents relating to such
change;
(5) Provide the Lenders with the same documents and
information, with respect to the Guarantor, as
required in paragraphs (1), (2) and (4) above;
(6) Comply with the requirements of all laws, rules,
regulations, orders and decrees of any
administrative, governmental, or judicial authority
or other organization or body, applicable to the
Borrower or any part of its assets, the
non-compliance with which would materially and
adversely affect the credit of the Borrower or its
ability duly to perform and observe the obligations
expressed to be assumed by the Borrower in or
pursuant to this Agreement;
(7) Not enter into any bare boat charter other than a
Bare Boat Charter with an Approved Charterer which
terms have been agreed to by the Lenders provided
that such agreement shall not be unreasonably
withheld if:
(i) the Borrower shall remain responsible to the
Lenders for the complete and proper
performance of its obligations under this
Agreement;
24
(ii) the hire due under the Bare Boat Charter is
paid in such amount and at such time as to
enable the Borrower to meet its obligations
under this Agreement;
(iii) such hire referred to in subparagraph (ii)
above is assigned to Lenders in an
assignment agreement in form and substance
satisfactory to the Lenders;
(iv) the Bare Boat Charter is subject to and
subordinate to the Mortgages and the
Approved Charterer agrees that the Bare Boat
Charter terminates in the event that this
Credit is accelerated pursuant to the
provisions of Articles XIV and XV, and the
Bare Boat Charter contains provisions on
insurances, maintenance and use of the
Vessel that are no less onerous than such
provisions in this Agreement and in the
Mortgages;
(v) the Approved Charterer issues to the Lenders
the Approved Charterer's Letter of
Undertaking, provided that no such Approved
Charterer's Letter of Undertaking shall be
required if the Approved Charterer's
acknowledgment of the assignment mentioned
in subparagraph (iii) above includes a
similar undertaking;
(vi) legal counsel to the Lenders as to Liberian
law is in a position to confirm that the
Bare Boat Charter falls within the scope of
the Borrower's corporate purpose as defined
in its Articles of Association and By-laws,
and that the Borrower's representatives
having executed the Bare Boat Charter were
at that date fully empowered to sign the
Bare Boat Charter; and
(vii) legal counsel to the Lenders have been
provided with the corporate documentation of
the Approved Charterer, and the Lenders have
received from their counsel a legal opinion
with respect to the Bare Boat Charter and
the Approved Charterer's Letter of
Undertaking in substantially the form of the
opinion requested under Article III,
paragraph (1)(a) of this Agreement.
(8) Other than the hiring of cabins in the ordinary
course of business, not to enter into any other form
of hiring or leasing of all or part of the Vessel
with any person without the prior written consent of
the Lenders (such consent not to be unreasonably
withheld) other than time, voyage or cabin charters
of less than ninety (90) days (including any
extensions or renewals) during which operational
control and the crew remain that of the Borrower (or
the Approved Charterer as the case may be); and
25
(9) Not, without the prior written agreement of the
Lenders, enter into any form of transfer of any of
its rights or obligations arising from this
Agreement.
(b) The Borrower further undertakes that, for so long as sums are
owing or may be owing under this Agreement and/or the
Promissory Notes, it shall:
(1) Not substantially modify the Contract, directly or
indirectly, if, by reason of regulations which apply
to either Lender, such modification would make such
Lender's commitment impossible to fulfill or would
change the substance or form of its commitment. The
Borrower may, therefore, submit to the Lenders any
proposals for modification which in its opinion,
might have such consequence, and the Lenders will
indicate in a timely manner whether the modification
proposed will allow the Credit to be maintained;
(2) Not without the prior written consent of the Lenders
make any act of disposal of the Vessel whether
gratuitous or otherwise, or enter into any commitment
to third parties affecting the ownership of the
Vessel (unless the effectiveness of such commitment
is itself expressed to be conditional upon the prior
prepayment of the Credit or the written consent of
the Lenders);
(3) Keep the Vessel, or cause the Vessel to be kept, in
good working order and well maintained;
(4) Take such steps as may be reasonably necessary to
maintain and protect the interest of the Lenders in
the Vessel as the first priority mortgagees of the
Vessel and in the Insurances of the Vessel as first
priority assignees thereof;
(5) Promptly furnish SOCIETE GENERALE, acting on behalf
of the Lenders, with, or procure that it is furnished
promptly with, all such information as SOCIETE
GENERALE, acting on behalf of the Lenders, may from
time to time reasonably request regarding the Vessel,
her Insurances, operation, state and condition; and
(6) Take all steps that may be necessary or desirable
under any applicable law to publish or otherwise
inform third parties that the Vessel is subject to
the Mortgages.
26
ARTICLE XII - PREPAYMENT
The Borrower may prepay all or part of the Credit provided a prepayment covers
the full amount of one or more installments of principal evidenced by the
relevant Promissory Notes of principal, unless the Lenders agree otherwise and
provided such prepayment is made on the same day of any month as the day of the
normal Maturity Dates. Sums prepaid will be applied in accordance with Article
XVIII below. This option to prepay may only be exercised if one month's prior
written notice indicating the intended date of prepayment is given to SOCIETE
GENERALE on behalf of the Lenders.
The conditions of such prepayment will be, in due time and prior to such
prepayment, settled by mutual agreement between the Lenders and the Borrower.
Such mutual agreement will deal with practical procedures, in particular those
regarding the Promissory Notes, as well as of compensation to be paid by the
Borrower to the Lenders in addition to the COFACE premiums pursuant to Article
VII. Such compensation will be the sum of (i) the difference (if positive),
calculated by the Lenders, between the actual cost for the Lenders of the
funding for the Credit and the rate of interest for the monies to be invested by
the Lender, applied to the amounts so prepaid for the period from said
prepayment until the next interest prepayment date (if prepayment does not occur
on an interest payment date) and (ii) the charges (if any) imposed on the
Lenders by the French Government Authorities (funding or breakage costs of the
French Government Authority in charge of monitoring the fixed interest rate).
Details of any such calculations shall be supplied to the Borrower by the
Lenders.
27
ARTICLE XIII - INTEREST ON LATE PAYMENTS
Without prejudice to the provisions of Article XIV below, concerning Events of
Default, and without the present Article in any way constituting a waiver of
terms of payment, all Promissory Notes and/or sums due by the Borrower under
this Agreement will automatically bear interest on a day to day basis from the
date when they are payable until the date of actual payment at a rate per annum
equal to the higher of: (i) the rate at which overnight deposits in Dollars of
the same amount as the overdue amount are offered to SOCIETE GENERALE plus 3%,
or (ii) 11.00%. The interest will itself bear interest at the above rate if it
is due for an entire year.
28
ARTICLE XIV - ACCELERATION - EVENTS OF DEFAULT
(a) No drawing under this Credit may be requested from the Lenders
and the Lenders may require immediate payment of the
outstanding Promissory Notes of principal together with the
next maturing Promissory Notes of interest and the amount of
COFACE premiums included in the Promissory Notes of interest
which have not been accelerated if any one of the following
Events of Default occurs and is continuing:
(1) the Borrower is in default in the payment of any of
the Promissory Notes when and as the same shall
become due and payable as therein and herein provided
and such default shall continue for seven (7) days
after the due date;
(2) the Borrower is in default in the payment of any
other amounts payable under this Agreement or the
Mortgages and such default shall not have been cured
within ten (10) days from the receipt of a notice
from the Lenders stating that the payment is overdue;
(3) at any time any of the Insurances ceases to be in
full force and effect for any reason;
(4) the Borrower fails to perform any of its obligations
(other than those referred to elsewhere in this
Article XIV) under this Agreement and (if such
failure is capable of remedy) such failure remains
unremedied ten (10) days after the Borrower has
received notice of such failure (provided, however,
that the said period of ten (10) days shall be
extended to thirty (30) days if the Borrower
demonstrates to the Lenders' satisfaction (the
Lenders acting in good faith) that it is taking all
steps available to it to remedy the relevant failure
and that the relevant failure will be remedied within
such period of thirty (30) days);
(5) the Borrower shall (a) apply for or consent to the
appointment of a receiver or trustee or liquidator of
the Borrower or of all or a substantial part of the
assets of the Borrower (b) be unable or admit in
writing its inability to pay its debts as they mature
(c) make a general assignment for the benefit of
creditors, (d) be adjudicated insolvent or bankrupt,
(e) file or make a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization
(except for a reorganization made with the Lenders'
prior written consent, which shall not be
unreasonably withheld) or an arrangement with
creditors generally (f) take advantage of any
insolvency law (g) file an answer admitting the
material allegations of a petition filed against the
Borrower in any bankruptcy reorganization or
29
insolvency proceeding, (h) be liquidated, (i) be
subject to any judicial arrangement of debts, or (j)
take any corporate action for the purpose of
effecting any of the foregoing;
(6) an order, judgment or decree shall be entered without
the application, approval or consent of the Borrower
by any court of competent jurisdiction approving a
petition seeking reorganization of the Borrower or
appointing a receiver, trustee or liquidator of the
Borrower or of all or a substantial part of the
assets of the Borrower and such order, judgment or
decree: (i) is not being actively contested by the
Borrower in good faith and by appropriate
proceedings, or (ii) even if being so contested,
continues unstayed and in effect for a period of
thirty (30) days;
(7) any declaration, representation or warranty made by
the Borrower in this Agreement, the Assignment of
Insurances, the Assignment of Requisition Proceeds,
or the Mortgages shall have been incorrect when made
in any material respect;
(8) merger, splitting up or redomiciliation of the
Borrower to another jurisdiction or modification of
the corporate purpose or the corporate form of the
Borrower without the Lenders' consent (not to be
unreasonably withheld);
(9) the Borrower ceases to carry on business or disposes
of all or substantially all of its business, property
and assets;
(10) the Borrower shall be declared in default, after, if
applicable, any grace period, under any financing
agreement (including amongst others any lease
financing or hire purchase agreements) entered into
by the Borrower (including as guarantor) and as a
result thereof, the repayment of such financing being
in excess of US$ 15,000,000 is accelerated or the
relevant financing is terminated or any claim in
excess of US$ 15,000,000 is made against the Borrower
in respect of any debt and the same is not paid or
challenged in good faith by the Borrower within any
applicable grace period;
(11) any governmental measure or decision, whether
applying generally or solely to the Borrower or the
Vessel, is taken in Liberia or the country of the
Maritime Registry for the time being or any other
country from or through which payments under this
Agreement or the Promissory Notes are made by the
Borrower, or any other event occurs in Liberia or the
country of the Maritime Registry for the time being
or any other country from or through which payments
under this Agreement or the Promissory Notes are made
by the Borrower, which, in either case, might
reasonably be expected to impede the performance of
the Borrower's obligations under the Mortgages, the
Promissory Notes or this Agreement, unless the
30
Borrower proves to the Lenders' satisfaction within
thirty (30) days of such measure or decision taking
effect that it has taken such action as may be
necessary to avoid such impediment to performance;
(12) the Borrower sells or otherwise disposes of, or loses
(otherwise than as a result of a Compulsory
Requisition), title to the Vessel;
(13) either: (i) the Vessel is put up for forced auction
or necessary auction, (ii) the Vessel is encumbered
by any distraint and the Borrower is unable to secure
the release of the Vessel from such distraint within
ten (10) days, or (iii) any claim secured by maritime
lien on the Vessel is not paid within twenty days
from its becoming due and payable, other than liens
contested in good faith by the Borrower;
(14) there is a destruction or capture, by enemies of the
Republic of Liberia or by or through the authority of
any foreign government, pirates or others or
forfeiture of the Vessel, or the Borrower, for any
other reason, wholly or partially loses control of
the Vessel and, in the event of capture only, the
Vessel is not freed within ten (10) days;
(15) the Borrower shall do or cause to be done any act or
thing which could reasonably be expected to make void
or voidable the registration of the Vessel and/or the
Mortgages or the Vessel shall cease to be registered
under the flag of the Maritime Registry previously
approved by the Lenders, unless the Lenders have
agreed to such change of registration;
(16) the Vessel is arrested or taken in execution of any
lien or judgment and is not freed from such arrest or
from such taking in execution within ten (10) days
thereof;
(17) the Guarantor fails to perform any of its
undertakings (other than the undertakings of the
Guarantor set forth in paragraph 2(b)(5) and (6) of
the Guarantor's Letter of Undertaking) under the
Guarantor's Letter of Undertaking and (if such
failure is capable of remedy) such failure remains
unremedied ten (10) days after the Guarantor has
received notice of such failure (provided, however,
that the said period of ten (10) days shall be
extended to thirty (30) days if the Guarantor
demonstrates to the Lenders' satisfaction (the
Lenders acting in good faith) that it is taking all
steps available to it to remedy the relevant failure
and that the relevant failure will be remedied within
such period of thirty (30) days);
(18) Any of the events listed in paragraphs (5), (6), (9)
or (11) above occurs with respect to the Guarantor
(taking into account, MUTATIS MUTANDIS, any
applicable grace periods);
31
(19) any declaration, representation or warranty made by
the Guarantor in the Guarantor's Letter of
Undertaking shall have been incorrect when made in
any material respect;
(20) the Guarantor shall be declared in default, after, if
applicable, any grace period, under any financing
agreement (including amongst others any lease
financing or hire purchase agreements) entered into
by the Guarantor (including as guarantor) and as a
result thereof, the repayment of such financing being
in excess of US$ 50,000,000 is accelerated or the
relevant financing is terminated or any claim in
excess of US$ 50,000,000 is made against the
Guarantor in respect of any debt and the same is not
paid or challenged in good faith by the Guarantor
within any applicable grace period;
(21) any of the events of default contained in the
Mortgages occurs.
(b) Notice of any Event of Default and/or of acceleration of the
Promissory Notes shall be given by the Lenders in accordance
with Article XXIII hereof.
(c) In no event shall any delay in exercising the Lenders' right
to require advance repayment be interpreted as a waiver of
this right.
(d) Furthermore, in case of such accelerated repayment following
an Event of Default, the Borrower shall be liable to pay to
SOCIETE GENERALE, on behalf of the Lenders, in addition to the
COFACE premiums pursuant to Article VII, compensation
calculated as provided for in Article XII.
(e) In the event that the accelerated amount is received by
SOCIETE GENERALE on behalf of the Lenders before the date of
normal maturity of the accelerated Promissory Notes of
interest, the Borrower shall, subject to no sums remaining due
to the Lenders from the Borrower, be entitled to refund of
interest for the actual number of days between the date on
which the Lenders received the amount and the normal Maturity
Date for the amount.
(f) Any Event of Default which is cured before action is taken by
the Lenders under this Article XIV shall be considered as not
having occurred.
32
ARTICLE XV - ACCELERATION - OTHER EVENTS
(a) The Lenders may also require immediate payment of the then
outstanding Promissory Notes of principal together with the
next maturing Promissory Notes of interest and the amount of
the COFACE premiums included in the Promissory Notes of
interest which have not been accelerated and all other sums
due hereunder if:
(i) the Guarantor shall default in the due performance
and observance of any of the undertakings set forth
in paragraph 2(b)(5) or (6) of the Guarantor's Letter
of Undertaking; or
(ii) there occurs the Total Loss or Compulsory Requisition
of the Vessel.
(b) Notice of the acceleration of the Promissory Notes pursuant to
this Article XV shall be given by the Lenders in accordance
with Article XXIII hereof.
(c) However, if the event mentioned in paragraph (a)(ii) of this
Article XV occurs (but without prejudice to the Lenders'
rights to receive the insurance proceeds forthwith upon
collection as may be provided for in the Mortgages and/or
Assignment of Insurances and/or Assignment of Requisition
Proceeds), the Borrower shall not be required to pay its
indebtedness under this Agreement (whether or not evidenced by
Promissory Notes) earlier than the date which is 90 (ninety)
days after the Total Loss Date or the date of Compulsory
Requisition.
(d) The provisions of paragraphs (c), (d), and (e) of Article XIV
shall apply MUTATIS MUTANDIS to acceleration of the Promissory
Notes pursuant to this Article XV.
33
ARTICLE XVI - CURRENCY OF PAYMENT - DOMICILIATION
(a) The funds for payment of the Promissory Notes at the domiciliation bank
as well as all other sums due by the Borrower under this Agreement,
shall be paid in Dollars to the credit of the account of
FINT/RES/BAC/EXT, number [ ] with SOCIETE GENERALE, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx XX 00000, under the following reference: "Buyer
Credit RCCL CONSTELLATION." These sums must be credited before 11.00
a.m. New York time in freely transferable and convertible currency. For
each payment to be made, the Borrower shall notify SOCIETE GENERALE on
the third Banking Day prior to the due payment date that it will issue
instructions to its bank (which shall be named in such notification) to
make the relevant payment.
(b) The funds for payment by the Borrower to the Lenders of the Change
Order Amount shall be paid in EUR and/or FRF to the credit of the
account of OPER/FIN/EXT, swift address SOGRPPFIN at SOCIETE GENERALE,
Paris, under the following reference: "Buyer Credit RCCL
CONSTELLATION." These sums must be credited before 11:00 a.m. Paris
time in freely transferable and convertible currency.
(c) The funds for reimbursing RCCL by the Lenders of the US$ amount
specified in Article IV (b) shall be paid in Dollars to the credit of
the account of RCCL at: Chase Manhattan, New York, Royal Caribbean
Cruises Ltd., ABA # 000-000-000, Account # [ ], Swift Code
XXXXXX00.
(d) Except with respect to the Change Order Amount, Dollars shall be the
currency of account and of payment of all amounts due hereunder in all
events. In the event that any payment is made or received, including
pursuant to any judgment or order rendered by a competent court or
tribunal, in a currency other than Dollars or at a location other than
that stipulated herein for payment and such payment after conversion
into Dollars and/or transfer to the location stipulated herein for
payment does not result in the payment of the amount of Dollars due
hereunder, the Lenders shall be entitled to demand immediate payment
of, and shall have a separate cause of action for, such sums as are
necessary exactly to compensate the deficiency.
34
ARTICLE XVII - SECURITY
All the Borrower's payment obligations under this Agreement and/or the related
Promissory Notes shall be secured by:
(a) the Mortgages to be executed and registered in favor of the
Lenders forthwith upon delivery of the Vessel;
(b) the Assignment of Insurances and the Assignment of Requisition
Proceeds to be executed upon delivery of the Vessel; and
(c) the Guarantees.
35
ARTICLE XVIII - APPLICATION OF SUMS RECEIVED
All sums received under this Agreement by either of the Lenders or by SOCIETE
GENERALE, on behalf of the Lenders, for any reason whatsoever will, without
prejudice to complementary provisions of the Mortgages, be applied:
(a) in priority, to payments of any kind due or in arrears in the
order of their Maturity Dates and, if relevant, prorata to
each of the Lenders; or
(b) if no payments are in arrears or if these payments have been
discharged as set out above, then:
(1) to sums remaining due under this Agreement and not
evidenced by Promissory Notes, and
(2) to sums remaining due under this Agreement evidenced
by Promissory Notes, and if relevant, prorata to each
of the Lenders and in each case in inverse order of
maturity, the interest being recalculated
accordingly.
36
ARTICLE XIX
INTENTIONALLY OMITTED
37
ARTICLE XX - GOVERNING LAW
This Agreement and all related documents or agreements (with the exception of
the securities governed by a foreign law) shall be governed by French Law.
38
ARTICLE XXI - ARBITRATION
In the event of any dispute, difference, controversy or claim arising out of, or
relating to or in connection with, this Agreement and any related documents or
agreements (with the exception of the securities governed by a foreign law), the
same shall be submitted to and finally settled by arbitration under the Rules of
Arbitration of the International Chamber of Commerce by three (3) arbitrators
appointed in accordance with the said Rules and who will reach their decision by
applying French law. The arbitration shall take place in Geneva and shall be
conducted in the English language.
39
ARTICLE XXII - APPENDICES
The following appendices form an integral part of this Agreement
APPENDIX I: Documents to be produced by the Supplier to SOCIETE GENERALE
APPENDIX II: Part 1: Specimen of Promissory Note A
Part 2: Specimen of Promissory Note B
APPENDIX III: Part 1: Specimen of a letter containing a joint interest
mandate
Part 2: Lenders' Letter of Undertaking
APPENDIX IV: Guarantor's Letter of Undertaking
APPENDIX V: Part 1: Independent First Demand Guarantee to SOCIETE GENERALE
Part 2: Independent First Demand Guarantee to CREDIT
AGRICOLE INDOSUEZ
APPENDIX VI: Approved Charterer's Letter of Undertaking
40
ARTICLE XXIII - NOTICES AND SERVICES OF PROCESS
Any notices, demands and service of process relating to this Agreement or its
performance, shall be in writing and shall be validly addressed, delivered or
served at the respective addresses below :
FOR THE BORROWER: CONSTELLATION INC.
c/o ROYAL CARIBBEAN CRUISES LTD
0000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
X.X.X.
Facsimile : (000) 000 0000
Attention : Vice President and Treasurer
with a copy to the General Counsel
(Facsimile : (000) 000 0000) at the same
address
FOR THE LENDERS: SOCIETE GENERALE
OPER/FIN/EXT
Tour Societe Generale
17, cours Valmy - 00000 Xxxxx-Xx Defense Cedex
France
Facsimile : (331) 42.14.66.04
Attention : Buyer Credit RCCL - CONSTELLATION
CREDIT AGRICOLE INDOSUEZ
0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 - Xxxxxxxxxx
Xxxxxx
Facsimile : (331) 41.89.29.87
Reference : Buyer Credit RCCL - CONSTELLATION
or to such other address or numbers as each party may notify to the other.
Notices shall be effective upon receipt as set forth above. Any communications
by facsimile shall be confirmed by registered mail or recognized international
courier service, but the communication shall be deemed received on the date of
the facsimile transmission (or if that day is not a business day in the place
where the facsimile is received, on the next business day in that place).
41
PROVIDED THAT for so long as no notice of acceleration of the Promissory Notes
has been issued pursuant to Article XIV(b) or XV(b) hereof, notices addressed to
SOCIETE GENERALE shall be deemed to have been addressed to both the Lenders.
42
ARTICLE XXIV - MISCELLANEOUS
(a) If any term of this Agreement becomes invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired.
(b) No failure or delay on the part of the Lenders in exercising
any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise
thereof preclude any other or further exercise thereof by the
Lenders or the exercise by the Lenders of any other right,
power or privilege. The rights and remedies of the Lenders
herein provided are cumulative and not exclusive of any rights
or remedies provided by law.
(c) This Agreement shall not be capable of being modified
otherwise than by an express modification in writing signed by
the Borrower and the Lenders.
43
ARTICLE XXV - COMING INTO FORCE
This Agreement shall come into force on the date of its signature but the rights
and obligations of the Borrower hereunder may be terminated by written notice
from the Borrower to SOCIETE GENERALE, acting on behalf of the Lenders, such
notice to be received not later than sixty (60) days prior to the Intended
Delivery Date, i.e. February 26, 2002. Following service of such notice (which
shall be irrevocable), the Borrower shall have no further right to make a
drawing under the Credit, the Borrower shall have no further obligations under
this Agreement, and the payment mandate given by the Borrower to the Lenders as
provided in the second paragraph of Article IV shall cease to have any effect.
Service by the Borrower of the written notice in accordance with the preceding
paragraph shall constitute a condition subsequent (CONDITION RESOLUTOIRE) to
this Agreement.
Made in three (3) originals on December 18, 2001
CONSTELLATION INC.
BY: /s/ XXXXXX XXXXX
ITS: VP Treasurer
SOCIETE GENERALE
BY: /s/ I. SENECA
ITS: Isabelle SENECA - Director Export Finance
CREDIT AGRICOLE INDOSUEZ
BY: /s/ [illegible]
ITS: G. O. Bygodt
[illegible]
BY: /s/ [illegible]
ITS: Xxxxxx Xxxxxxx
Manager
44
APPENDIX I
DOCUMENTS TO BE PRODUCED BY THE SUPPLIER
TO SOCIETE GENERALE
Copy of the Commercial Invoice, duly executed by the Supplier in favor of the
Borrower and countersigned by the Borrower.
Copy of the Protocol of Delivery and Acceptance duly executed by the Supplier
and the Borrower.
Copy of the commercial invoice(s) corresponding to the Change Orders or any
other similar document issued by the Supplier stating the Change Orders amount.
45
APPENDIX II - PART 1
SPECIMEN OF PROMISSORY NOTE A
PROMISSORY NOTE
Number PA (or IA) ...
......................on ........... Good for US$ ............
(DATE AND PLACE WHERE NOTE MADE) (AMOUNT IN FIGURES)
On ...........................
(MATURITY DATE)
WE SHALL PAY AGAINST THIS PROMISSORY NOTE TO THE ORDER OF SOCIETE GENERALE THE
AMOUNT OF ................................. (amount in words) US DOLLARS.
PROTEST WAIVED
(FOR VALUE GIVEN PURSUANT TO THE CREDIT AGREEMENT SIGNED ON ..............)
---------------------------------------
Maker
---------------------------------------
CONSTELLATION INC.
00 Xxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx
---------------------------------------
Place of Payment CONSTELLATION INC.
---------------------------------------
SOCIETE GENERALE
00 xxxxxxxxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
---------------------------------------
(SIGNATURES)
46
APPENDIX II - PART 2
SPECIMEN OF PROMISSORY NOTE B
PROMISSORY NOTE
Number PB (or IB) ...
......................on ........... Good for US$ ............
(DATE AND PLACE WHERE NOTE MADE) (AMOUNT IN FIGURES)
On ...........................
(MATURITY DATE)
WE SHALL PAY AGAINST THIS PROMISSORY NOTE TO THE ORDER OF CREDIT AGRICOLE
INDOSUEZ THE AMOUNT OF ................................. (amount in words) US
DOLLARS.
PROTEST WAIVED
(FOR VALUE GIVEN PURSUANT TO THE CREDIT AGREEMENT SIGNED ON ..............)
-------------------------------------------------
Maker
-------------------------------------------------
CONSTELLATION INC.
00 Xxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx
-------------------------------------------------
Place of Payment CONSTELLATION INC.
-------------------------------------------------
SOCIETE GENERALE
00 xxxxxxxxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
-------------------------------------------------
(SIGNATURES)
47
APPENDIX III - PART 1
SPECIMEN OF A LETTER CONTAINING A JOINT INTEREST MANDATE
TO BE SENT BY THE BORROWER TO SOCIETE GENERALE
SOCIETE GENERALE
Tour Societe Generale
17, cours Valmy
00000 Xxxxx-Xx Defense Cedex
France
Attention :
Dear Sirs,
We refer to the Buyer Credit Agreement (hereinafter called the "CREDIT
AGREEMENT") that we have signed with your Bank and Credit Agricole Indosuez
(hereinafter called the "LENDERS") concerning the partial financing of the
Vessel to be built by Chantiers de l'Atlantique S.A. (the "SUPPLIER") under a
Contract signed on March 16, 1998, and modified by its amendment No 2 signed on
February 19, 1999, (hereinafter called the "CONTRACT"), for the supply of one
passenger cruise Vessel having Hull n(degree) U31 (hereinafter called the
"VESSEL").
In accordance with Article V of the Credit Agreement, we are sending you
herewith :
one set of 17 Promissory Notes of principal marked PA 1 to PA 17 to the order of
SOCIETE GENERALE,
one set of 17 Promissory Notes of principal marked PB1 to PB17 to the order of
CREDIT AGRICOLE INDOSUEZ,
one set of 17 Promissory Notes of interest marked IA 1 to IA 17 to the order of
SOCIETE GENERALE,
one set of 17 Promissory Notes of interest marked IB1 to IB17 to the order of
CREDIT AGRICOLE INDOSUEZ.
48
These notes, domiciled with SOCIETE GENERALE, are issued in accordance with
Appendix II to the Credit Agreement, their amounts established in accordance
with the schedule issued by SOCIETE GENERALE acting on behalf of the Lenders
with their Maturity Date left in blank.
We hereby give you, SOCIETE GENERALE, acting in our name and on our behalf, the
following mandate :
when the drawing under said credit is made and when the Delivery Date of the
Vessel is known :
To insert the Maturity Date on each Promissory Note by reference to the Delivery
Date of the Vessel so that the first Promissory Note of principal of each set
and the first Promissory Note of interest of each set become due six months
after the date indicated in the said document, the subsequent Promissory Notes
of each set falling due at the end of each following successive half yearly
period.
To modify, if needed, in accordance with Article V of the Credit Agreement, the
amount entered on each Promissory Note of principal, replacing it with an amount
calculated by SOCIETE GENERALE so that the total of all Promissory Notes of
principal is equivalent to the amount drawn under the Credit Agreement, and each
Promissory Note is equal to 1/34 of the total amount of the Credit,
To modify, if needed, the amount of interest entered on each Promissory Note of
interest, replacing it with the actual amount of interest due and calculated on
the number of days in each 6 (six) months on the balance of principal not yet
repaid and so that the total amount of each set of Promissory Notes of interest
is the same,
To release the Promissory Notes to SOCIETE GENERALE (in the case of those to the
order of SOCIETE GENERALE) and to CREDIT AGRICOLE INDOSUEZ (in the case of those
to the order of CREDIT AGRICOLE INDOSUEZ), against the Lenders' letter of
undertaking as per specimen in Appendix III, Part 2 of the Credit Agreement.
Upon the occurrence of any of the events specified below, to collect the
Promissory Notes from SOCIETE GENERALE (in the case of those to the order of
SOCIETE GENERALE) and from CREDIT AGRICOLE INDOSUEZ (in the case of those to the
order of CREDIT AGRICOLE INDOSUEZ) and to modify such Promissory Notes as set
out below and to return such Promissory Notes to SOCIETE GENERALE (in the case
of those to the order of SOCIETE GENERALE) and to CREDIT AGRICOLE INDOSUEZ (in
the case of those to the order of CREDIT AGRICOLE INDOSUEZ):
(i) if pursuant to the provisions of Article XII of the Credit
Agreement, we prepay part of the Credit, to modify the
Maturity Dates of the Promissory Notes of principal
corresponding to the prepaid installments to reflect the date
49
of prepayment; and to modify the amount entered on each
Promissory Note of interest whose Maturity Date occurs after
the date of prepayment to reflect the amount of interest
calculated on the basis of the outstanding amount of the
Credit after such prepayment;
(ii) if pursuant to the provisions of Article XII of the Credit
Agreement, we prepay all of the Credit, to modify the Maturity
Dates of all of the outstanding Promissory Notes of principal
to reflect the date of prepayment of the Credit;
(iii) if pursuant to the provisions of Article XIV or Article XV of
the Credit Agreement, the Promissory Notes are accelerated, to
modify the Maturity Dates on all of the outstanding Promissory
Notes of principal to reflect the date of acceleration of such
Promissory Notes; to modify the Maturity Dates on the next
maturing Promissory Notes of interest to reflect the date of
acceleration of such Promissory Notes; and to modify the
amount and the Maturity Date entered on two other Promissory
Notes, one issued in favor of SOCIETE GENERALE and the other
in favor of CREDIT AGRICOLE INDOSUEZ, so that the amount of
each such Promissory Note is equal to one half of the amount
of the COFACE premiums included in the Promissory Notes of
interest which have not been accelerated and to reflect that
the date of payment is the date of the accelerated Promissory
Notes.
The present mandate, given in the joint interest of the parties, is in
consequence irrevocable. It has been drawn up in accordance with the specimen
set out in Appendix III, Part 1 of the Credit Agreement, and may only be
modified with the written approval of the Lenders. Unless otherwise defined
herein, capitalized terms shall have the meanings attributed to them in the
Credit Agreement.
When the present mandate has been carried out, please inform us forthwith by
confirming that the above mentioned letter of undertaking has been received by
you and mailed to us.
All possible disputes resulting from this letter or from its implementation will
be dealt with in accordance with Articles XX and XXI of the Credit Agreement.
CONSTELLATION INC.
50
APPENDIX III - PART 2
LENDER'S LETTER OF UNDERTAKING
SOCIETE GENERALE CREDIT AGRICOLE INDOSUEZ
Tour Societe Generale 9 quai du President Xxxx Xxxxxx
17, cours Valmy 92400 XXXXXXXXXX
XXXXX XX XXXXXXX 0 XXXXXX
XXXXXX
CONSTELLATION INC]
00, XXXXX XXXXXX
XXXXXXXX
XXXXXXX
(DATE)
Dear Sirs,
We refer to the buyer credit agreement (the "CREDIT AGREEMENT") signed on
............., between SOCIETE GENERALE and CREDIT AGRICOLE INDOSUEZ as Lenders
and your company as Borrower for the partial financing of the vessel known as
hull N(degree) U31 (the "VESSEL").
The installments of repayment of principal and payment of interest relating to
said credit are evidenced by Promissory Notes governed by French Law.
The payment of said Promissory Notes is secured by two first mortgages on the
Vessel.
Both the Credit Agreement and the said mortgages provide for possible
prepayment, whether voluntary or upon acceleration, which may lead to a
cancellation of Promissory Notes evidencing the amount of interest relating to
reimbursed principal for the period beginning at the date of anticipated
reimbursement until stated maturity.
In order not to prevent the application of said provisions we hereby undertake
not to endorse the Promissory Notes issued to our order, save as required by
COFACE, until their date of maturity or of acceleration.
51
APPENDIX IV
GUARANTOR'S LETTER OF UNDERTAKING
CREDIT AGRICOLE INDOSUEZ
0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxxxxxxx
Xxxxxx
SOCIETE GENERALE
Tour Societe Generale
17, cours Valmy
Paris La Defense 7
France
In consideration of the Buyer Credit Agreement dated ________________, 2001 (the
"CREDIT AGREEMENT"), between CONSTELLATION INC., a wholly owned Subsidiary of
Royal Caribbean Cruises Ltd., (the "GUARANTOR") and a company incorporated in
Liberia and having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx,
Credit Agricole Indosuez, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE
SURVEILLANCE, with a capital of EUR ______________ having its registered office
at 0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx 00000 Xxxxxxxxxx, Xxxxxx, and registered
with the Commercial Registry of Nanterre under the number R.C.S. Nanterre 304
187 701, and Societe Generale, a SOCIETE ANONYME, with a capital of EUR
528,749,122.50 having its registered office at 00 xxxxxxxxx Xxxxxxxxx, 00000
Xxxxx, Xxxxxx, and registered with the Commercial Registry of Paris under the
number R.C.S. Paris B 552 120 222, we hereby make and agree to be bound by the
Declarations and Undertakings contained in paragraph 2 below.
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms shall
have the meanings attributed to them in the Credit Agreement.
2. DECLARATIONS AND UNDERTAKINGS OF THE GUARANTOR.
(a) The Guarantor hereby declares and warrants to the Beneficiary
that:
(1) The Guarantor is duly incorporated, validly existing
and in good standing under the laws of Liberia and
has power to carry on its business as it is now being
conducted and to own its property and other assets;
(2) The Guarantor has the power to execute and perform
each of its obligations under this letter and the
Guarantees and all necessary corporate and other
actions have been taken by the Guarantor to authorize
the execution and performance of the same;
52
(3) The execution and performance by the Guarantor of
this letter and the Guarantees do not contravene any
law, regulation, judicial or administrative decree or
conflict with the By-Laws or Articles of Association
of the Guarantor;
(4) There are no governmental approvals outside France
which are necessary for the execution and performance
by the Guarantor of this letter and/or the Guarantees
or for this letter and/or the Guarantees to be
enforceable against the Guarantor, other than those
which have already been obtained;
(5) There are no proceedings before any arbitration
tribunal, court, government agency or administrative
body pending or threatened against the Guarantor
which, in the reasonable opinion of the Guarantor,
are likely to be adversely determined, and would (if
adversely determined) be likely to (i) materially and
adversely affect the financial condition of the
Guarantor or impair the ability of the Guarantor to
pay, when due, any amounts due under the Guarantees,
or (ii) in any material respect prevent or prohibit
the execution or performance of this letter and/or
the Guarantees or preclude or impair the exercise by
the Lenders of their rights hereunder under the
Guarantees;
(6) The Guarantor is not in default under any material
agreement or obligation to which it is a party or by
which it is bound;
(7) There are no notarizations, filings, recordings,
registrations or enrollments in any court, public
office or elsewhere in Liberia which are necessary in
order to ensure the legality, validity,
enforceability or admissibility in evidence of this
letter and/or the Guarantees.
(b) The Guarantor hereby undertakes that it shall:
(1) Provide the Lenders with its quarterly and annual
financial statements promptly after the same are
filed with the United States Securities and Exchange
Commission;
(2) Promptly advise the Lenders of any event or
circumstance which, in the reasonable opinion of the
Guarantor, would be likely to have a material adverse
effect on the Guarantor's ability to perform its
obligations under this letter and/or the Guarantees;
(3) Comply with the requirements of all laws, rules,
regulations, orders and decrees of any
administrative, governmental, or judicial authority
or other organization or body, applicable to the
Guarantor or any part of its assets, the
non-compliance with which would materially and
53
adversely affect the credit of the Guarantor or its
ability duly to perform and observe the obligations
expressed to be assumed by the Guarantor in or
pursuant to this letter and/or the Guarantees, or the
validity thereof;
(4) Inform the Lenders within ten (10) days of all
changes to its legal form, nature or corporate
purpose and shall supply all supporting documents
relating to such change;
(5) Not consolidate with or merge with or into any Person
(other than in the case of a merger or consolidation
where the Guarantor is the surviving entity) if the
surviving Person does not by way of operation of law
or otherwise assume all the obligations of the
Guarantor under the Guarantees, and not lease all or
substantially all of its business properties or
assets to any Person if such Person is not a wholly
owned subsidiary of the Guarantor.
For the purpose of the foregoing phrase
"Person" means any natural person, corporation,
partnership, firm, association, trust, government,
governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
(6) Remain the beneficial direct or indirect owner of at
least 51% of the issued stock carrying voting rights
of the Borrower.
3. RELATIONSHIP TO THE CREDIT AGREEMENT. The Guarantor acknowledges that
it is fully aware of the terms and conditions of the Credit Agreement
and that any relevant provisions of such agreement shall apply, MUTATIS
MUTANDIS, to this Letter of Undertaking.
Signed this ____ day of _____________, 2001 in one original.
ROYAL CARIBBEAN CRUISES LTD.
By: _____________________________
Its: ____________________________
54
APPENDIX V - PART I
INDEPENDENT FIRST DEMAND GUARANTEE TO SOCIETE GENERALE
[ROYAL CARIBBEAN CRUISES LTD.
LETTERHEAD]
INDEPENDENT FIRST-DEMAND GUARANTEE
GARANTIE AUTONOME A PREMIERE DEMANDE
This guarantee is granted by Royal Caribbean Cruises Ltd., a company
incorporated in Liberia and having its registered office at 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx, represented by Xxxxxx Xxxxx, an officer being duly authorized
(the "GUARANTOR") to Societe Generale, a SOCIETE ANONYME, with a capital of EUR
528,749,122.50 having its registered office at 00 xxxxxxxxx Xxxxxxxxx, 00000
Xxxxx, Xxxxxx, and registered with the Commercial Registry of Paris under the
number R.C.S. Paris B 552 120 222 (the "BENEFICIARY").
WHEREAS
1. CONSTELLATION INC., a wholly owned subsidiary of the Guarantor and a company
incorporated in Liberia and having its registered office at 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx CONSTELLATION INC. has entered into a Buyer Credit Agreement
dated _______________, 2001 (the "CREDIT AGREEMENT") with the Beneficiary and
Credit Agricole Indosuez, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE
SURVEILLANCE, with a capital of EUR ______________ having its registered office
at 0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx 00000 Xxxxxxxxxx, Xxxxxx, and registered
with the Commercial Registry of Nanterre under the number R.C.S. Nanterre 304
187 701.
2. For the repayment of the amounts of principal and interest due by
CONSTELLATION INC. to the Beneficiary under the Credit Agreement, CONSTELLATION
INC. is to make a series of promissory notes to the order of the Beneficiary as
follows:
- Seventeen (17) promissory notes of principal in the following amounts and
maturity dates:
AMOUNTS MATURITY DATES
(Months after the Delivery Date)
- Seventeen (17) promissory notes of interest in the following amounts and
maturity dates:
AMOUNTS MATURITY DATES
(Months after the Delivery Date)
55
3. The aforesaid thirty-four (34) promissory notes (together the "PROMISSORY
NOTES") aggregate a total of US$____________.
4. It is a condition of the drawing under the Credit Agreement that
CONSTELLATION INC. provides the Beneficiary with a guarantee from the Guarantor,
and the latter, being interested in CONSTELLATION INC. drawing under the Credit
Agreement, is willing to deliver this guarantee.
5. The Guarantor acknowledges that it is fully aware of the terms of the Credit
Agreement and of the letter of joint interest mandate delivered pursuant to the
Credit Agreement.
THEREFORE, IN CONSIDERATION OF THE FOREGOING:
The Guarantor hereby irrevocably and unconditionally undertakes to pay
immediately, without contest or protest of any nature whatsoever, to the
Beneficiary, within fifteen (15) days of receipt by Guarantor of a Demand for
Payment (as defined below) from the Beneficiary, the amount stated in such
Demand for Payment, up to a maximum amount of US$_____________ (the "GUARANTEED
AMOUNT").
For purposes of this guarantee, a "DEMAND FOR PAYMENT" shall mean a written
demand from the Beneficiary stating that the amount claimed is due under this
guarantee and that the conditions for payment of such amount are fulfilled and
stating that the Credit Agreement has been accelerated in accordance with its
terms and that the Promissory Notes are immediately payable. The Demand for
Payment shall be the only document necessary in connection with the foregoing
and the Guarantor shall not contest the contents thereof.
The Guarantor understands that its obligations under this guarantee are
irrevocable, unconditional, and independent of all obligations stipulated under
the Credit Agreement and the Promissory Notes. As a result, the Guarantor
irrevocably waives its rights, if any, to any defenses that may otherwise be
available to it or CONSTELLATION INC. under, inter alia, the Credit Agreement
and the Promissory Notes.
Any Demand for Payment under this guarantee shall be made by registered letter
with return receipt requested or by a recognized international courier service
to the following address:
[Please indicate Guarantor's adress]
or to such other address as shall be notified in writing by the Guarantor to the
Beneficiary.
Demand for Payment will be deemed to have been received on the date such demand
is first presented to the addressee.
The obligations of the Guarantor hereunder shall not be subject to any reduction
or other impairment by set off, deduction, counterclaim, withholding or
otherwise for or on account of any taxes, duties or other charges (present or
56
future). In the event any payment hereunder is subject to any such withholding,
the Guarantor shall increase the amount due to the Beneficiary by an amount such
that the net payment to the Beneficiary shall be the same as the amount demanded
had such withholding not been required.
This guarantee and the liabilities and obligations of the Guarantor shall remain
in full force and effect until the proper and valid payment in full of all the
Guaranteed Amount or an absolute discharge or release of the Guarantor signed by
the Beneficiary.
This guarantee is governed by French law and shall be construed as a GARANTIE
AUTONOME A PREMIERE DEMANDE. In the event of any dispute, difference,
controversy or claim arising out of, or relating to or in connection with, this
guarantee, the same shall be submitted to and finally settled by arbitration
under the Rules of Arbitration of the International Chamber of Commerce by three
(3) arbitrators appointed in accordance with the said Rules and who will reach
their decision by applying French law. The arbitration shall take place in
Geneva and shall be conducted in the English language.
Signed this ____ day of _____________, 2001 in one original.
ROYAL CARIBBEAN CRUISES LTD.(1)
By: _____________________________
Its: _____________________________
------------------------
(1) Signature of the representative of the Guarantor.
57
APPENDIX V - PART II
INDEPENDENT FIRST DEMAND GUARANTEE TO CREDIT AGRICOLE INDOSUEZ
[ROYAL CARIBBEAN CRUISES LTD.
LETTERHEAD]
INDEPENDENT FIRST-DEMAND GUARANTEE
GARANTIE AUTONOME A PREMIERE DEMANDE
This guarantee is granted by Royal Caribbean Cruises Ltd., a company
incorporated in Liberia and having its registered office at 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx, represented by ___________________, an officer being duly
authorized (the "GUARANTOR") to Credit Agricole Indosuez, a SOCIETE ANONYME A
DIRECTOIRE ET CONSEIL DE SURVEILLANCE, with a capital of EUR ______________
having its registered office at 0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx 00000
Xxxxxxxxxx, Xxxxxx, and registered with the Commercial Registry of Nanterre
under the number R.C.S. Nanterre 304 187 701 (the "BENEFICIARY").
WHEREAS
1. CONSTELLATION INC., a wholly owned subsidiary of the Guarantor and a company
incorporated in Liberia and having its registered office at 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx "CONSTELLATION INC." has entered into a Buyer Credit Agreement
dated _______________, 2001 (the "CREDIT AGREEMENT") with the Beneficiary and
Societe Generale, a SOCIETE ANONYME, with a capital of EUR 528,749,122.50 having
its registered office at 00 xxxxxxxxx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx, and
registered with the Commercial Registry of Paris under the number R.C.S. Paris B
552 120 222.
2. For the repayment of the amounts of principal and interest due by
CONSTELLATION INC. to the Beneficiary under the Credit Agreement, CONSTELLATION
INC. is to make a series of promissory notes to the order of the Beneficiary as
follows:
- Seventeen (17) promissory notes of principal in the following amounts and
maturity dates:
AMOUNTS MATURITY DATES
(Months after the Delivery Date)
- Seventeen (17) promissory notes of interest in the following amounts and
maturity dates:
AMOUNTS MATURITY DATES
(Months after the Delivery Date)
58
3. The aforesaid thirty-four (34) promissory notes (together the "PROMISSORY
NOTES") aggregate a total of US$____________.
4. It is a condition of the drawing under the Credit Agreement that
CONSTELLATION INC. provides the Beneficiary with a guarantee from the Guarantor,
and the latter, being interested in CONSTELLATION INC. drawing under the Credit
Agreement, is willing to deliver this guarantee.
5. The Guarantor acknowledges that it is fully aware of the terms of the Credit
Agreement and of the letter of joint interest mandate delivered pursuant to the
Credit Agreement.
THEREFORE, IN CONSIDERATION OF THE FOREGOING:
The Guarantor hereby irrevocably and unconditionally undertakes to pay
immediately, without contest or protest of any nature whatsoever, to the
Beneficiary, within fifteen (15) days of receipt by Guarantor of a Demand for
Payment (as defined below) from the Beneficiary, the amount stated in such
Demand for Payment up to a maximum amount of US$_____________ (the "GUARANTEED
AMOUNT").
For purposes of this guarantee, a "DEMAND FOR PAYMENT" shall mean a written
demand from the Beneficiary stating that the amount claimed is due under this
guarantee and that the conditions for payment of such amount are fulfilled and
stating that the Credit Agreement has been accelerated in accordance with its
terms and that the Promissory Notes are immediately payable. The Demand for
Payment shall be the only document necessary in connection with the foregoing
and the Guarantor shall not contest the contents thereof.
The Guarantor understands that its obligations under this guarantee are
irrevocable, unconditional, and independent of all obligations stipulated under
the Credit Agreement and the Promissory Notes. As a result, the Guarantor
irrevocably waives its rights, if any, to any defenses that may otherwise be
available to it or CONSTELLATION INC. under, inter alia, the Credit Agreement
and the Promissory Notes.
Any Demand for Payment under this guarantee shall be made by registered letter
with return receipt requested or by a recognized international courier service
to the following address:
or to such other address as shall be notified in writing by the Guarantor to the
Beneficiary.
Demand for Payment will be deemed to have been received on the date such demand
is first presented to the addressee.
59
The obligations of the Guarantor hereunder shall not be subject to any reduction
or other impairment by set off, deduction, counterclaim, withholding or
otherwise for or on account of any taxes, duties or other charges (present or
future). In the event any payment hereunder is subject to any such withholding,
the Guarantor shall increase the amount due to the Beneficiary by an amount such
that the net payment to the Beneficiary shall be the same as the amount demanded
had such withholding not been required.
This guarantee and the liabilities and obligations of the Guarantor shall remain
in full force and effect until the proper and valid payment in full of all the
Guaranteed Amount or an absolute discharge or release of the Guarantor signed by
the Beneficiary.
This guarantee is governed by French law and shall be construed as a GARANTIE
AUTONOME A PREMIERE DEMANDE. In the event of any dispute, difference,
controversy or claim arising out of, or relating to or in connection with, this
guarantee, the same shall be submitted to and finally settled by arbitration
under the Rules of Arbitration of the International Chamber of Commerce by three
(3) arbitrators appointed in accordance with the said Rules and who will reach
their decision by applying French law. The arbitration shall take place in
Geneva and shall be conducted in the English language.
Signed this ____ day of _____________, 2001 in one original.
ROYAL CARIBBEAN CRUISES LTD.(2)
By: _____________________________
Its: _____________________________
------------------------
(2) Signature of the representative of the Guarantor.
60
APPENDIX VI
APPROVED CHARTERER'S LETTER OF UNDERTAKING
[THIS FORM ASSUMES THE VESSEL WILL BE REGISTERED IN THE LIBERIAN
MARITIME REGISTRY AND SHALL BE ADAPTED ACCORDINGLY IF THIS IS NOT THE CASE.]
[APPROVED CHARTERER'S
LETTERHEAD]
CREDIT AGRICOLE INDOSUEZ
0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxxxxxxx
Xxxxxx
SOCIETE GENERALE
Tour Societe Generale
17, cours Valmy
Paris La Defense 7
France
In consideration of your agreeing to permit us to enter into a
bare boat charter agreement with CONSTELLATION INC. for a duration of
___________ with respect to Constellation (the "VESSEL") in accordance with the
terms of the appended bare boat charter (the "BARE BOAT CHARTER"), we confirm to
you that we have received a copy of the mortgages (the "MORTGAGES") granted by
CONSTELLATION INC. to Societe Generale, a SOCIETE ANONYME, with a capital of EUR
528,749,122.50 having its registered office at 00 xxxxxxxxx Xxxxxxxxx, 00000
Xxxxx, Xxxxxx, and registered with the Commercial Registry of Paris under the
number R.C.S. Paris B 552 120 222 ("SOCIETE GENERALE") and Credit Agricole
Indosuez, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE, with a
capital of EUR ______________ having its registered office at 0, xxxx xx
Xxxxxxxxx Xxxx Xxxxxx 00000 Xxxxxxxxxx, Xxxxxx, and registered with the
Commercial Registry of Nanterre under the number R.C.S. Nanterre 304 187 701,
(together with SOCIETE GENERALE, the "LENDERS"), over the Vessel, and we
undertake to you that:
(a) we shall keep the Vessel in good working order and
well maintained, operate the Vessel in accordance
with the provisions of Article III of the Mortgages
and take such steps as may be reasonably necessary to
61
maintain and protect the interest of the Lenders in
the Vessel as the first priority mortgagees of the
Vessel;
(b) we shall insure the Vessel or cause the Vessel to be
insured in accordance with the provisions of Article
IV of the Mortgages and take such steps as may be
reasonably necessary to maintain and protect the
interest of the Lenders in the Vessel as first
priority assignees of the insurances of the Vessel;
(c) we shall promptly furnish SOCIETE GENERALE, acting on
behalf of the Lenders, with, or procure that it is
furnished promptly with, all such information as
SOCIETE GENERALE, acting on behalf of the Lenders,
may from time to time reasonably request regarding
the Vessel, her insurances, operation, state and
condition;
(d) we shall not grant any sub bare boat charter nor any
time, voyage or cabin charter for a duration in
excess of ninety (90) days (including any extensions
or renewals);
We further confirm to you that the Bare Boat Charter is
subordinated to the Mortgages and that:
(a) we shall not extend the duration nor modify the terms
of the Bare Boat Charter without your prior written
approval;
(b) in case of inconsistencies, the provisions of the
Mortgages shall prevail upon the provisions of the
Bare Boat Charter; and
(c) the Bare Boat Charter shall terminate upon your
notifying to us a copy of the notice referred to in
Article XIV(b) and XV(b) of the Credit Agreement at
the following address:
Kindly acknowledge receipt and agreement of this letter upon
the enclosed duplicate.
APPROVED BARE BOAT CHARTERER
By: _____________________________
Its: _____________________________
62
