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EXHIBIT 2.10
ROYAL CARIBBEAN CRUISES LTD., as Issuer
and
THE BANK OF NEW YORK, as Trustee
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NINTH SUPPLEMENTAL INDENTURE
Dated as of February 2, 2001
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SENIOR DEBT SECURITIES
Supplemental to Indenture dated as of July 15, 1994
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NINTH SUPPLEMENTAL INDENTURE, dated as of February 2, 2001
(the "Ninth Supplemental Indenture"), between ROYAL CARIBBEAN CRUISES LTD., a
Liberian corporation (hereinafter called the "Company"), and THE BANK OF NEW
YORK (as successor to NationsBank of Georgia, National Association), as trustee
under the Indenture referred to below (hereinafter called the "Trustee").
WHEREAS, the Company entered into an Indenture dated as of
July 15, 1994 (the "Basic Indenture", all capitalized terms used in this Ninth
Supplemental Indenture and not otherwise defined being used as defined in the
Basic Indenture) with the Trustee, for the purposes of issuing its unsecured and
unsubordinated indebtedness in one or more series (the "Securities") in such
principal amount or amounts as may from time to time be authorized by or
pursuant to the authority granted in one or more resolutions of the Board of
Directors of the Company; and
WHEREAS, the Company proposes to issue a series of Securities
denominated its "8.75% Senior Notes due 2011" (such Securities being referred to
herein as the "Senior Notes"); and
WHEREAS, Sections 901(6) and 901(10) of the Basic Indenture
provide that without the consent of the Holders of the Securities of any series,
the Company, when authorized by a Board Resolution, and the Trustee may enter
into one or more indentures supplemental to the Basic Indenture (a) to establish
the form or terms Securities of any series as contemplated by Sections 201 and
301 thereof and (b) to cure any ambiguity, to correct or supplement any
provision in the Basic Indenture which may be inconsistent with any other
provision of the Basic Indenture or to make any other provisions with respect to
matters or questions arising under the Basic Indenture, provided that such
action shall not adversely affect the interests of the Holders of the Securities
of any series in any material respect; and
WHEREAS, the entry into this Ninth Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the Basic
Indenture; and
WHEREAS, all things necessary have been done to make this
Ninth Supplemental Indenture, when executed and delivered by the Company, the
legal, valid and binding agreement of the Company, in accordance with its terms.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The parties hereto mutually covenant and agree as follows:
SECTION 1. The Basic Indenture is hereby amended solely with respect to
a series of Securities that consists of Senior Notes, as follows:
(A) By amending Section 101 to add new definitions thereto in
appropriate alphabetical sequences, as follows:
"Attributable Debt" has the meaning specified in Section 1008.
"Consolidated Net Tangible Assets" has the meaning specified in Section
1008.
"Funded Debt" has the meaning specified in Section 1009.
"Mortgage" has the meaning specified in Section 1008.
"Principal Property" has the meaning specified in Section 1008.
"Restricted Subsidiary" has the meaning specified in Section 1008.
"Secured Debt" has the meaning specified in Section 1008.
"Unrestricted Subsidiary" has the meaning specified in Section 1008.
(B) By adding the following Section 114 to Article One:
Section 114. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
The Company agrees that any legal suit, action or proceeding brought by
any party to enforce any rights under or with respect to the Indenture or the
Securities may be instituted in any state or federal court in The City of New
York, State of New York, and waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding and irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding. The
Company hereby irrevocably designates and appoints the Company's General Counsel
as the Company's authorized agent to receive and forward on its behalf service
of any and all process which may be served in any such suit, action or
proceeding in any such court and agrees that service of process upon the
Company's General Counsel at his office at the Company, 0000 Xxxxxxxxx Xxx,
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Xxxxx, Xxxxxxx 00000 and written notice of said service to the Company, mailed
or delivered to the Company's General Counsel, 0000 Xxxxxxxxx Xxx, Xxxxx,
Xxxxxxx 00000, shall be deemed in every respect effective service of process
upon the Company in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon the Company. Said designation and
appointment shall be irrevocable. Nothing in this Section 114 shall affect the
right of any party to the Indenture to serve process in any manner permitted by
law or limit the right of any party to the Indenture to bring proceedings
against the Company in the courts of any jurisdiction or jurisdictions. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of the Company's General Counsel in
full force and effect so long as the Indenture or any of the Securities shall be
outstanding. To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under the Indenture and the Securities, to the extent permitted by law.
(C) By adding the following Section 115 to Article One:
Section 115. NO RECOURSE AGAINST OTHERS.
A director, officer, stockholder or incorporator, as such, of the
Company shall not have any liability for any obligation, covenant or agreement
of the Company under this Indenture or any indenture supplemental hereto or in
the Securities or for any claim based on, in respect of or by reason of such
obligation, covenant or agreement or their creation under any rule of law,
statute or constitutional provision or the enforcement of any assessment or by
any legal or equitable proceeding or otherwise. Each Holder by accepting any of
the Securities waives and releases all such liability.
(D) By adding the following Section 311 to Article Three:
Section 311. ADDITIONAL SENIOR NOTES
Senior Notes in the aggregate principal amount of U.S.$500,000,000 are
being initially issued pursuant to this Ninth Supplemental Indenture. The
Company may issue additional Senior Notes under this Ninth Supplemental
Indenture (the "Additional Notes"), provided that the series shall be limited to
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an aggregate principal amount of U.S.$700,000,000. The Senior Notes and any
Additional Notes subsequently issued shall be treated as a single class and,
unless otherwise specified, all references to Senior Notes shall include the
Additional Notes for all purposes under the Indenture and this Ninth
Supplemental Indenture, including, without limitation, waivers, amendments,
redemptions and offers to purchase.
(E) By adding the following Section 1008 to Article Ten:
Section 1008. RESTRICTIONS ON SECURED DEBT.
(a) The Company covenants and agrees that it will not, and
will not permit any Restricted Subsidiary to create, issue, incur,
assume or guarantee any Secured Debt without making effective provision
(and the Company covenants that in such case it will make or cause to
be made effective provision) whereby the Senior Notes then outstanding
and any other indebtedness of or guarantee by the Company or such
Restricted Subsidiary then entitled thereto shall be secured by such
Mortgage equally and ratably with (or prior to) any and all other
obligations and indebtedness thereby secured for so long as any such
other obligations and indebtedness shall be so secured, unless after
giving effect thereto, the aggregate amount of all such Secured Debt
plus all Attributable Debt of the Company and its Restricted
Subsidiaries in respect of sale and leaseback transactions (as defined
in Section 1009) involving Principal Properties (other than sale and
leaseback transactions permitted by clause (a)(1) of Section 1009 in
reliance upon one of the exclusions set forth in paragraphs (1) through
(6) below and clause (a)(2) of Section 1009) would not exceed 10% of
Consolidated Net Tangible Assets; PROVIDED, HOWEVER, that this Section
shall not apply to, and there shall be excluded from Secured Debt in
any computation under this Section, indebtedness for money borrowed
secured by:
(1) Mortgages existing on the date of this Ninth
Supplemental Indenture;
(2) Mortgages on any real or personal property of any
Person, which Mortgages are existing at the time such Person
became a Restricted Subsidiary, which Mortgage was not
incurred in contemplation of such Person becoming a Restricted
Subsidiary;
(3) Mortgages in favor of the Company or any
Restricted Subsidiary;
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(4) Mortgages existing on any real or personal
property at the time it is acquired by the Company or a
Restricted Subsidiary or created within 18 months after the
date of such acquisition, conditional sale and similar
agreements;
(5) Mortgages on any real or personal property to
secure the payment of all or any part of the purchase price or
construction cost thereof or to secure any indebtedness for
money borrowed incurred prior to, at the time of, or within 18
months after the acquisition, the completion of any
construction or the commencement of full operation of such
property, for the purpose of financing all or any part of the
purchase price or construction cost thereof; and
(6) Any extension, renewal or refunding (or
successive extensions, renewals or refundings), as a whole or
in part, of any Mortgage referred to in the foregoing clauses
(1) to (5) inclusive; PROVIDED the principal amount of such
extension, renewal or refunding may not exceed the principal
amount of the Mortgage being extended, renewed or refunded
plus the amount of any premium or other costs paid in
connection with such extension, renewal or refunding.
(b) "Attributable Debt" is defined as to any particular lease
under which any Person is liable, at the time of determination, the
present value (discounted at the interest rate implicit in the lease
or, if not known, at the Company's incremental borrowing rate) of the
obligations of the lessee of the property subject to such lease for
rental payments during the remaining term of the lease included in such
transaction including any period for which such lease has been extended
or may, at the sole option of the lessor, be extended or until the
earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments
shall include such penalty), after excluding all amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges.
(c) "Consolidated Net Tangible Assets" is defined as (1) the
total amount of assets (less applicable reserves and other properly
deductible items) which under generally accepted accounting principles
would be included on a consolidated balance sheet of the Company and
its Restricted Subsidiaries after deducting therefrom, without
duplication, the sum of (i) all current liabilities except for (A)
notes and loans payable, (B) current maturities of long term debt, (C)
current maturities of obligations under capital leases and (D) customer
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deposits and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which
in each case under generally accepted accounting principles would be
included on such consolidated balance sheet, less (2) the amount which
would be so included on such consolidated balance sheet for investments
(less applicable reserves) (i) in Unrestricted Subsidiaries or (ii) in
corporations while they were Unrestricted Subsidiaries but which at the
time of computation are not Subsidiaries of the Company.
(d) "Mortgage" is defined as and includes any mortgage,
pledge, lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
(e) "Principal Property" is defined as any real or personal
property owned or leased by the Company or any Subsidiary the net book
value of which on the date as of which the determination is being made
exceeds 5% of the Company's Consolidated Net Tangible Assets.
(f) "Restricted Subsidiary" is defined as any Subsidiary which
owns or leases a Principal Property and any other Subsidiary which has
not been designated an Unrestricted Subsidiary.
(g) "Secured Debt" is defined as indebtedness for money
borrowed which is secured by a Mortgage on a Principal Property of the
Company or any Restricted Subsidiary.
(h) "Unrestricted Subsidiary" is defined as (1) any Subsidiary
of the Company which at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of the
Company pursuant to a Board Resolution) and (2) any Subsidiary of an
Unrestricted Subsidiary.
(F) By adding the following Section 1009 to Article Ten:
Section 1009. RESTRICTIONS ON SALES AND LEASEBACKS.
(a) Except for a sale or transfer between a Restricted
Subsidiary and the Company or between Restricted Subsidiaries, the
Company covenants and agrees that it will not and will not permit any
Restricted Subsidiary to, sell or transfer any Principal Property owned
by the Company or a Restricted Subsidiary, with the intention that the
Company or any Restricted Subsidiary take back a lease thereof, except
a lease for a period, including renewals, of less than three years, by
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the end of which period it is intended that the use of such Principal
Property by the lessee will be discontinued (any such transaction being
herein referred to as a "sale and leaseback transaction") unless
either:
(1) the Company or such Restricted Subsidiary could
incur Secured Debt pursuant to Section 1008 on the Principal
Property to be leased in a principal amount equal to the
Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the Senior
Notes; or
(2)(A) the gross proceeds of the sale or transfer of
the Principal Property leased pursuant to such arrangement
equals or exceeds the fair market value of such Principal
Property and (B) within one year after such sale or transfer
of such Principal Property shall have been made by the Company
or by a Restricted Subsidiary, the Company applies all of the
net proceeds of the sale or transfer of the Principal Property
leased pursuant to such arrangement to (i) the voluntary
retirement of Funded Debt of the Company or any Restricted
Subsidiary or (ii) the acquisition by the Company or a
Restricted Subsidiary of one or more properties which on an
aggregate basis have a purchase price in excess of 5% of
Consolidated Net Tangible Assets (other than the Principal
Property involved in such sale).
(b) "Funded Debt" is defined as any indebtedness for money
borrowed, created, issued, incurred, assumed or guaranteed, whether
secured or unsecured, maturing more than one year after the date of
determination thereof and any indebtedness, regardless of its terms,
renewable pursuant to the terms thereof or of a revolving credit or
similar agreement effective for more than 360 days after the date of
the creation of indebtedness.
(G) By adding the following Section 1010 to Article Ten:
Section 1010. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
(except for ordinary wear and tear) and will cause to be made all necessary
repairs, renewals and replacements thereof, all as in the judgment of the
Company may be necessary so that the business carried on in connection therewith
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may be properly and advantageously conducted at all times; PROVIDED, HOWEVER,
that nothing in this covenant shall prevent the Company or any Restricted
Subsidiary from discontinuing the operation or maintenance of any properties if
such discontinuation is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders of the Senior Notes.
(H) By amending the table of contents of the Basic Indenture to reflect
the additions described in subsections (B) through (G) of this Section 1.
SECTION 2. The Basic Indenture, as supplemented and amended by this
Ninth Supplemental Indenture, is in all respects ratified and confirmed, and the
Basic Indenture and this Ninth Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
SECTION 3. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Ninth
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 4. All covenants and agreements in this Ninth Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 5. In case any provision in this Ninth Supplemental Indenture
or in the Senior Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions (or of the other series
of Securities) shall not in any way be affected or impaired thereby.
SECTION 6. Nothing in this Ninth Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of the Senior Notes any benefit or any
legal or equitable right, remedy or claim under this Ninth Supplemental
Indenture.
SECTION 7. This Ninth Supplemental Indenture and each Senior Note shall
be deemed to a contract made under the laws of the State of New York and this
Ninth Supplemental Indenture and each such Senior Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. All terms used in this Ninth Supplemental Indenture not
otherwise defined herein that are defined in the Basic Indenture shall have the
meanings set forth therein.
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SECTION 9. This Ninth Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10. Section 403 and Section 1004 of the Basic Indenture are
applicable to the Senior Notes.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
ROYAL CARIBBEAN CRUISES LTD.
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: V.P. - Treasurer
THE BANK OF NEW YORK, as Trustee,
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Agent
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of January, 2001, before me personally came Xxxxxx Xxxxx, to me
known, who, being by me duly sworn, did depose and say that she is Vice
President - Treasurer of ROYAL CARIBBEAN CRUISES LTD., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Notary Public
State of [SEAL]
My Commission expires on
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STATE OF FLORIDA )
) ss.:
COUNTY OF XXXXX )
On the 2nd day of February, 2001, before me personally came Xxxxx Xxxxxx, to me
known, who, being by me duly sworn, did depose and say that he is an Agent of
THE BANK OF NEW YORK, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
/s/ XXXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Notary Public
State of [SEAL]
My Commission expires on
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